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Filing # 170673532 E-Filed 04/10/2023 03:59:22 PM
IN THE CIRCUIT COURT OF THE 9TH
JUDICIAL CIRCUIT, IN AND FOR
OSCEOLA COUNTY, FLORIDA
CASE NO. 2020-CA-002942-ON
VILLAS AT EMERALD LAKE HOME-
OWNERS ASSOCIATION, INC., a Florida
not for profit corporation,
Plaintiff,
v.
ROYAL OAK HOMES, LLC, a Florida lim-
ited liability company; ADVANCED
WRAPPING AND CONCRETE SOLU-
TIONS OF CENTRAL FLORIDA, INC., a
Florida corporation; DON KING’S CON-
CRETE, INC., a Florida corporation;
HUGH MacDONALD CONSTRUCTION,
INC., a Florida corporation; IMPERIAL
BUILDING CORPORATION, a Florida cor-
poration; TGK STUCCO, INC., a Florida
corporation; WEATHERMASTER BUILD-
ING PRO- DUCTS, 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; WOLR’S IRRIGATION &
LANDSCAPING, INC., a Florida
corporation; SUMMERPARK HOMES,
INC., a Florida corporation; BROWN +
COMPANY ARCHITECTURE, INC., a
Florida corporation,
Defendants,
/
ROYAL OAK HOMES, LLC, a Florida
limited liability company;
Crossclaim Plaintiff,
v.
ADVANCED WRAPPING AND CON-
CRETE SOLUTION OF CENTRAL
FLORIDA, INC., a Florida corporation;
DON KING’S CONCRETE, INC., a Florida
corporation; HUGH MacDONALD CON-
STRUCTION, INC., a Florida corporation;
IMPERIAL BUILDING CORPORATION,
a Florida corporation; PREMIER PLAS-
TERING OF CENTRAL FLORIDA, INC.
n/k/a TGK STUCCO, INC., a Florida cor-
poration; WEATHERMASTER BUILDING
H AM I LT ON, MI L L E R & B I RT HI SE L, LLP
150 Southeast Second Avenue, Suite 1200 · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690
CASE NO. 2020-CA-002942-ON
PRODUCTS, INC., a Florida corporation;
WEINTRAUB INSPECTIONS & FOREN-
SICS, INC. n/k/a WEINTRAUB ENGI-
NEERING AND INSPECTIONS, INC., a
Florida corporation; WOLF’S IRRIGATION
& LANDSCAPING, INC., a Florida corpora-
tion; BROWN+ COMPANY ARCHITEC-
TURE, INC., a Florida corporation;
Crossclaim Defendants.
/
WEATHERMASTER BUILDING PROD-
UCTS, INC., a Florida corporation.,
Third-Party Plaintiff,
v.
ALL GLASS INSTALLATION CORP., a
Florida profit corporation; CASEY
HAWKINS, GLASS, INC., a Florida corpo-
ration; DEAN NESBIT, LLC, a Florida
limited liability company; HELBERG
ENTERPRISES, 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.
/
WEATHERMASTER BUILDING PROD-
UCTS, INC., a Florida corporation,
Third-Party Plaintiff,
vs.
ALL GLASS INSTALLATION CORP., a
Florida corporation; CASEY HAWKINS
GLASS, INC., a Florida corporation;
DEAN NESBIT, LLC, a Florida limited
liability company; HELBERG ENTER-
PRISES, 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 WIN-
DOWS, INC., a Florida corporation; and
WELL HUNG WINDOWS & DOORS,
LLC, a Florida limited liability company,
Third-Party Defendants.
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H AM I LT ON, MI L L E R & B I RT HI SE L, LLP
150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690
CASE NO. 2020-CA-002942-ON
/
DON KING’S CONCRETE, INC., a Florida
corporation,
Third-Party Plaintiff,
vs.
E.R.O. CONSTRUCTION, INC., a Florida
corporation; LIOS CONCRETE CORP., a
Florida corporation; and ATLANTIC
CONCRETE SYSTEMS, INC., a Florida
corporation,
Third-Party Defendants.
/
DEFENDANT/CROSSCLAIM DEFENDANT’S TGK STUCCO, INC. ANSWER
TO ROYAL OAK HOMES LLC SECOND AMENDED CROSS-CLAIM
Defendant/Cross-Claim Defendant, TGK STUCCO, INC. (“TGK”), by and
through undersigned counsel, files its Answer and Affirmative Defenses to Royal
Oak Homes, LLC’ Second Amended Cross-Claims and states:
Jurisdiction and Venue
1. Without knowledge, therefore denied.
2. Admitted.
3. Without knowledge, therefore denied.
4. Admitted for jurisdictional purposes and otherwise denied.
Parties
5. Without knowledge, therefore denied.
6. Without knowledge, therefore denied.
7. Without knowledge, therefore denied.
8. Without knowledge, therefore denied.
9. Without knowledge, therefore denied.
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H AM I LT ON, MI L L E R & B I RT HI SE L, LLP
150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690
CASE NO. 2020-CA-002942-ON
10. TGK admits it was a Florida corporation authorized to do business in
Florida. As to remaining allegations, TGK is without knowledge, therefore denied.
11. Without knowledge, therefore denied.
12. Without knowledge, therefore denied.
13. Without knowledge, therefore denied.
14. Without knowledge, therefore denied.
General Allegations
15. Denied as to TGK, as to remaining allegations, without knowledge,
therefore denied.
16. Without knowledge, therefore denied.
17. Denied as to TGK, as to remaining allegations, without knowledge,
therefore denied.
18. Without knowledge, therefore denied.
Count One – Breach of Contract (Advanced Wrapping)
19. TGK repeats and realleges its responses in paragraphs “1” through
“18” of this answer as though fully stated herein.
20. The allegations contained in paragraphs “20” through “29” are not
directed to TGK and thus do not require a response. To the extent a response is
required, TGK is without knowledge and therefore the allegations are denied.
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H AM I LT ON, MI L L E R & B I RT HI SE L, LLP
150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690
CASE NO. 2020-CA-002942-ON
Count Two – Negligence (Advanced Wrapping)
21. TGK repeats and realleges its answers contained in paragraphs “1”
though “18” as though fully stated herein.
22. The allegations contained in paragraphs “31” through “33” are not
directed to TGK and thus do not require a response. To the extent a response is
required, TGK is without knowledge and therefore the allegations are denied.
Count Three – Statutory Cause of Action (Advanced Wrapping)
23. TGK repeats and realleges its answers contained in paragraphs “1:
through “18” as though fully stated herein.
24. The allegations contained in paragraphs “35” through “41” are not
directed to TGK and thus do not require a response. To the extent a response is
required, TGK is without knowledge and therefore the allegations are denied.
Count Four – Breach of Contract (Don King)
25. TGK repeats and realleges its answers contained in paragraphs “1”
though “18” as though fully stated herein.
26. The allegations contained in paragraphs “43” through “52” are not
directed to TGK and thus do not require a response. To the extent a response is
required, TGK is without knowledge and therefore the allegations are denied.
Count Five – Negligence (Don King)
27. TGK repeats and realleges its answers contained in paragraphs “1”
though “18” as though fully stated herein.
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H AM I LT ON, MI L L E R & B I RT HI SE L, LLP
150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690
CASE NO. 2020-CA-002942-ON
28. The allegations contained in paragraphs “54” through “56” are not
directed to TGK and thus do not require a response. To the extent a response is
required, TGK is without knowledge and therefore the allegations are denied.
Count Six – Statutory Cause of Action (Don King)
29. TGK repeats and realleges its answers contained in paragraphs “1”
though “18” as though fully stated herein.
30. The allegations contained in paragraphs “58” through “64” are not
directed to TGK and thus do not require a response. To the extent a response is
required, TGK is without knowledge and therefore the allegations are denied.
Count Seven – Action to Reestablish Lost Documents (Don King)
31. TGK repeats and realleges its answers contained in paragraphs “1”
though “18” and “26” as though fully stated herein.
32. The allegations contained in paragraphs “66” through “71” are not
directed to TGK and thus do not require a response. To the extent a response is
required, TGK is without knowledge and therefore the allegations are denied.
Count Eight – Breach of Contract (Expert Painting)
33. TGK repeats and realleges its answers contained in paragraphs “1”
though “18” as though fully stated herein.
34. The allegations contained in paragraphs “73” through “82” are not
directed to TGK and thus do not require a response. To the extent a response is
required, TGK is without knowledge and therefore the allegations are denied.
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H AM I LT ON, MI L L E R & B I RT HI SE L, LLP
150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690
CASE NO. 2020-CA-002942-ON
Count Nine – Negligence (Expert Painting)
35. TGK repeats and realleges its answers contained in paragraphs “1”
though “18” as though fully stated herein.
36. The allegations contained in paragraphs “84” through “86” are not
directed to TGK and thus do not require a response. To the extent a response is
required, TGK is without knowledge and therefore the allegations are denied.
Count Ten – Statutory Cause of Action (Expert Painting)
37. TGK repeats and realleges its answers contained in paragraphs “1”
though “18” as though fully stated herein.
38. The allegations contained in paragraphs “88” through “94” are not
directed to TGK and thus do not require a response. To the extent a response is
required, TGK is without knowledge and therefore the allegations are denied.
Count Eleven – Breach of Contract (Hugh MacDonald)
39. TGK repeats and realleges its answers contained in paragraphs “1”
though “18” as though fully stated herein.
40. The allegations contained in paragraphs “96” through “105” are not
directed to TGK and thus do not require a response. To the extent a response is
required, TGK is without knowledge and therefore the allegations are denied.
Count Twelve – Negligence (Hugh MacDonald)
41. TGK repeats and realleges its answers contained in paragraphs “1”
though “18” as though fully stated herein.
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H AM I LT ON, MI L L E R & B I RT HI SE L, LLP
150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690
CASE NO. 2020-CA-002942-ON
42. The allegations contained in paragraphs “107” through “109” are not
directed to TGK and thus do not require a response. To the extent a response is
required, TGK is without knowledge and therefore the allegations are denied.
Count Thirteen – Statutory Cause of Action (High MacDonald)
43. TGK repeats and realleges its answers contained in paragraphs “1”
though “18” as though fully stated herein.
44. The allegations contained in paragraphs “111” through “117” are not
directed to TGK and thus do not require a response. To the extent a response is
required, TGK is without knowledge and therefore the allegations are denied.
Count Fourteen – Breach of Contract (Imperial Boarding)
45. TGK repeats and realleges its answers contained in paragraphs “1”
though “18” as though fully stated herein.
46. The allegations contained in paragraphs “119” through “128” are not
directed to TGK and thus do not require a response. To the extent a response is
required, TGK is without knowledge and therefore the allegations are denied.
Count Fifteen – Negligence (Imperial Boarding)
47. TGK repeats and realleges its answers contained in paragraphs “1”
though “18” as though fully stated herein.
48. The allegations contained in paragraphs “130” through “132” are not
directed to TGK and thus do not require a response. To the extent a response is
required, TGK is without knowledge and therefore the allegations are denied.
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H AM I LT ON, MI L L E R & B I RT HI SE L, LLP
150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690
CASE NO. 2020-CA-002942-ON
Count Sixteen – Statutory Cause of Action (Imperial Boarding)
49. TGK repeats and realleges its answers contained in paragraphs “1”
though “18” as though fully stated herein.
50. The allegations contained in paragraphs “134” through “140” are not
directed to TGK and thus do not require a response. To the extent a response is
required, TGK is without knowledge and therefore the allegations are denied.
Count Seventeen – Breach of Contract (TGK Stucco)
141. TGK repeats and realleges its answers contained in paragraphs “1”
though “18” as though fully stated herein.
142. Royal Oak’s cross-claim speaks for itself, otherwise denied.
143. Denied.
144. Plaintiff’s complaint speaks for itself, otherwise denied.
145. Denied.
146. Denied.
147. Without knowledge, therefore denied.
148. Denied.
149. Denied.
150. Denied.
151. Denied.
Count Eighteen – Negligence (TGK Stucco)
152. TGK repeats and realleges its answers contained in paragraphs “1”
though “18” as though fully stated herein.
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H AM I LT ON, MI L L E R & B I RT HI SE L, LLP
150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690
CASE NO. 2020-CA-002942-ON
153. Without knowledge, therefore denied.
154. Denied.
155. Denied.
Count Nineteen – Statutory Cause of Action (TGK Stucco)
156. TGK repeats and realleges its answers contained in paragraphs “1”
though “18” as though fully stated herein.
157. Royal Oak’s Cross-Claim speaks for itself, otherwise denied.
158. Without knowledge, therefore denied.
159. Plaintiff’s Complaint speaks for itself, otherwise denied.
160. Denied.
161. Denied.
162. Denied.
163. Denied.
Count Twenty – Breach of Contract (Weathermaster)
164. TGK repeats and realleges its answers contained in paragraphs “1”
though “18” as though fully stated herein.
165. The allegations contained in paragraphs “165” through “174” are not
directed to TGK and thus do not require a response. To the extent a response is
required, TGK is without knowledge and therefore the allegations are denied.
Count Twenty-One – Negligence (Weathermaster)
166. TGK repeats and realleges its answers contained in paragraphs “1”
though “18” as though fully stated herein.
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H AM I LT ON, MI L L E R & B I RT HI SE L, LLP
150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690
CASE NO. 2020-CA-002942-ON
167. The allegations contained in paragraphs “176” through “178” are not
directed to TGK and thus do not require a response. To the extent a response is
required, TGK is without knowledge and therefore the allegations are denied.
Count Twenty-Two – Statutory Cause of Action (Weathermaster)
168. TGK repeats and realleges its answers contained in paragraphs “1”
though “18” as though fully stated herein.
169. The allegations contained in paragraphs “180” through “186” are not
directed to TGK and thus do not require a response. To the extent a response is
required, TGK is without knowledge and therefore the allegations are denied.
Count Twenty-Three – Breach of Contract (Weintraub Engineering)
170. TGK repeats and realleges its answers contained in paragraphs “1”
though “18” as though fully stated herein.
171. The allegations contained in paragraphs “188” through “197” are not
directed to TGK and thus do not require a response. To the extent a response is
required, TGK is without knowledge and therefore the allegations are denied.
Count Twenty-Four – Negligence (Weintraub)
172. TGK repeats and realleges its answers contained in paragraphs “1”
though “18” as though fully stated herein.
173. The allegations contained in paragraphs “199” through “201” are not
directed to TGK and thus do not require a response. To the extent a response is
required, TGK is without knowledge and therefore the allegations are denied.
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H AM I LT ON, MI L L E R & B I RT HI SE L, LLP
150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690
CASE NO. 2020-CA-002942-ON
Count Twenty-Five – Breach of Contract (Wolf’s Irrigation)
174. TGK repeats and realleges its answers contained in paragraphs “1”
though “18” as though fully stated herein.
175. The allegations contained in paragraphs “203” through “212” are not
directed to TGK and thus do not require a response. To the extent a response is
required, TGK is without knowledge and therefore the allegations are denied.
Count Twenty-Six – Negligence (Wolf’s Irrigation)
176. TGK repeats and realleges its answers contained in paragraphs “1”
though “18” as though fully stated herein.
177. The allegations contained in paragraphs “214” through “216” are not
directed to TGK and thus do not require a response. To the extent a response is
required, TGK is without knowledge and therefore the allegations are denied.
Count Twenty-Seven – Statutory Cause of Action (Wolf’s Irrigation)
178. TGK repeats and realleges its answers contained in paragraphs “1”
though “18” as though fully stated herein.
179. The allegations contained in paragraphs “218” through “224” are not
directed to TGK and thus do not require a response. To the extent a response is
required, TGK is without knowledge and therefore the allegations are denied.
Count Twenty-Eight – Breach of Contract (Brown & Co)
180. TGK repeats and realleges its answers contained in paragraphs “1”
though “18” as though fully stated herein.
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H AM I LT ON, MI L L E R & B I RT HI SE L, LLP
150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690
CASE NO. 2020-CA-002942-ON
181. The allegations contained in paragraphs “226” through “235” are not
directed to TGK and thus do not require a response. To the extent a response is
required, TGK is without knowledge and therefore the allegations are denied.
Count Twenty-Nine – Professional Negligence (Brown & Co)
182. TGK repeats and realleges its answers contained in paragraphs “1”
though “18” as though fully stated herein.
183. The allegations contained in paragraphs “237” through “244” are not
directed to TGK and thus do not require a response. To the extent a response is
required, TGK is without knowledge and therefore the allegations are denied.
Count Thirty – Statutory Cause of Action (Brown & Co)
184. TGK repeats and realleges its answers contained in paragraphs “1”
though “18” as though fully stated herein.
185. The allegations contained in paragraphs “246” through “252” are not
directed to TGK and thus do not require a response. To the extent a response is
required, TGK is without knowledge and therefore the allegations are denied.
AFFIRMATIVE DEFENSES
1. TGK is entitled to an apportionment of damages in relation to the
degree of fault, if any, of all parties, entities, or persons (named in this action or
unnamed), pursuant to section 768.81, Florida Statutes, and the principles of law
set forth by Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993). PREMIER specifically
names each and every party to this action, and any affiliates of the aforementioned,
and any other persons or entities involved with the construction of the Project,
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H AM I LT ON, MI L L E R & B I RT HI SE L, LLP
150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690
CASE NO. 2020-CA-002942-ON
whose identity remains unknown, who were negligent and at fault for any damages
proven by ROYAL OAK and Plaintiff.
2. ROYAL OAK's and the Plaintiff's claims are barred because TGK
followed the plans and specifications in performing its work on the Project such that
TGK cannot be held liable for any loss or damages resulting from defective plans
and specifications and ROYAL OAKS's and the Plaintiff's claims are therefore
barred by the doctrine espoused under United States v. Spearin, 248 U.S. 132 (1918)
and its progeny.
3. ROYAL OAK and Plaintiff had a duty to mitigate their damages, and
any recovery by ROYAL OAK and Plaintiff in this action should be reduced to the
extent which ROYAL OAK and Plaintiff failed to mitigate their damages.
4. Any alleged defects or deficiencies in any work performed by TGK at
the Project are a result of a lack of proper maintenance, abuse, or neglect by the
Plaintiff and/or ROYAL OAK, rather than defective materials or original work
performed by TGK.
5. ROYAL OAK's and Plaintiff’s claims may be barred or limited by
spoliation of evidence to the extent ROYAL OAK and/or the Plaintiff engaged in
repairs and other activities without notice to TGK that disturbed the original
conditions of the Project.
6. To the extent other parties or persons (including the Plaintiff, ROYAL
OAK, Defendants, and/or Crossclaim Defendants) subsequently modified or altered
the work of TGK, TGK cannot be held liable.
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H AM I LT ON, MI L L E R & B I RT HI SE L, LLP
150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690
CASE NO. 2020-CA-002942-ON
7. ROYAL OAK's and the Plaintiff's claims are barred, in whole or in
part, to the extent that the alleged damages were caused by intervening or
superseding causes over which TGK had no control.
8. ROYAL OAK's alleged damages are barred to the extent they are
speculative, excessive, remote, contingent, prospective, uncertain, improbable, not
reasonably ascertainable, were unforeseeable, and do not logically, naturally,
probably, or proximately flow from any alleged breach of duty.
9. The designer of the Project was charged with the non-delegable duty of
ensuring that the design conformed with and met all applicable laws, regulations
and building codes, as required by Atlantic National Bank of Jacksonville v.
Modular Age, Inc., 363 So. 2d 1152 (Fla. 1st DCA 1978). TGK followed the plans
and specifications in performing its work on the Project, and to the extent that the
design or specified materials do not conform with all applicable laws, regulations, or
building codes, TGK is not legally responsible for same.
10. Any damages suffered by ROYAL OAK, if any, were the result of acts
of nature over which TGK had no control.
11. ROYAL OAK's and the Plaintiff's claims are barred, in whole or in
part, to the extent a lack of causal relationship exists between the alleged damages
and TGK’S work.
12. To the extent the remediation proposed or performed by ROYAL OAK
or the Plaintiff, has resulted, or will result in economic waste, TGK is not legally
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H AM I LT ON, MI L L E R & B I RT HI SE L, LLP
150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690
CASE NO. 2020-CA-002942-ON
responsible for economically wasteful remediation to the Project. See Grossman
Holdings Ltd. v. Hourihan, 414 So. 2d 1037 (Fla. 1982).
13. ROYAL OAK's and/or the Plaintiff's damages, if any, are barred and/or
must be reduced in accordance with the principles of "first cost" and "betterment,"
which consist of costs that have or will result in betterment to the Project beyond
what was called for in the applicable plans and specifications. TGK cannot be held
liable therefor or is entitled to a set-off for the value of such betterment. See
Grossman v. Sea Air Towers Ltd., 513 So. 2d 686 (Fla. 3d DCA 1987).
14. ROYAL OAK's claims must be set off and reduced to the extent
ROYAL OAK receives payment or consideration from other parties or non-parties
for its alleged damages.
15. ROYAL OAK's claims are barred by the applicable statute of
limitations and repose, as set forth in section 95.11, Florida Statutes.
16. In the event ROYAL OAK prevails on any claims, TGK is entitled to a
setoff from any and all settlements, releases and/or hold harmless agreements
pursuant to section 768.041, Florida Statutes and applicable Florida law.
17. TGK is not liable to ROYAL OAK and/or the Plaintiff because the
defects complained of were patent and obvious in nature. See Slavin v. Kaye, 108 So.
2d 462 (Fla. 1959).
18. Any alleged defects in TGK’s scope of work are wholly the result of
normal wear and tear and/or damages due to weather conditions or other causes or
circumstances.
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H AM I LT ON, MI L L E R & B I RT HI SE L, LLP
150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690
CASE NO. 2020-CA-002942-ON
19. ROYAL OAK's claims are barred, in whole or in part, by the doctrines
of waiver, estoppel, and acquiescence, to the extent ROYAL OAK approved of TGK’s
work during construction and at completion of the Project.
20. To the extent applicable and available to TGK, TGK hereby
incorporates herein all affirmative defenses alleged or to be alleged by all other
Crossclaim Defendants to ROYAL OAK's claims.
21. TGK is not liable for any alleged deficiencies in its work because its
work was inspected and approved by Weintraub, an independent contractor hired
by Royal Oak, as well as the appropriate Department of Building officials.
22. TGK reserves the right to amend its Affirmative Defenses as discovery proceeds in
this action and information supporting amendment of its Affirmative Defenses becomes known to
TGK.
DEMAND FOR JURY TRIAL
TGK demands a trial by jury on all issues triable by a jury as of right
Respectfully submitted,
/s/ Kira Tsiring
Jackeline Rodriguez
Florida Bar No. 70435
jrodriguez@hamiltonmillerlaw.com
Kira Tsiring
Fla. Bar No. 1023953
ktsiring@hamiltonmillerlaw.com
HAMILTON, MILLER & BIRTHISEL, LLP
150 Southeast Second Avenue, Suite 1200
Miami, Florida 33131-2332
Telephone: 305-379-3686
Facsimile: 305-379-3690
Attorneys for Defendant/Crossclaim Defendant
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150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690
CASE NO. 2020-CA-002942-ON
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy hereof was served on counsel on the
attached Service List via the E-Portal on April 10, 2023.
/s/ Kira Tsiring
Kira Tsiring
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H AM I LT ON, MI L L E R & B I RT HI SE L, LLP
150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690
CASE NO. 2020-CA-002942-ON
SERVICE LIST
Counsel for Plaintiff, Villas at Counsel for Brown + Company
Emerald Lake Homeowners Architecture, Inc.
Association, Inc. Bruce R. Calderon, Esq.
Phillip E. Joseph, Esq. Alicia Z. Gross, Esq.
Alana Smith, Esq. Barri A. Reisch, Esq.
Evan J. Small, Esq. Michael Lynott, Esq.
Jeffrey A. Widelitz, Esq. Milber Makris Plousadis & Seiden, LLP
Ball Janik, LLP 1900 N.W. Corporate Boulevard
201 East Pine Street – Suite 600 East Tower, Suite 440
Orlando, Florida 32801 Boca Raton, Florida 33431
pjoseph@balljanik.com Telephone: 561-994-7310
esmall@balljanik.com Facsimile: 561-994-7313
jwidelitz@balljanik.com bcalderon@milbermakris.com
asmith@balljanik.com agross@milbermakris.com
ypalmer@balljanik.com breisch@milbermakris.com
mwise@balljanik.com kmcdowell@milbermakris.com
orlandodocket@balljanik.com sskowronski@milbermakris.com
Counsel for, Imperial Building Counsel for Weathermaster Building
Corporation Products, Inc.
Thamir A. R. Kaddouri, Jr., Esq. Peter J. Kapsales, Esq.
Beth A. Tobey, Esq. Margaret M. Efta, Esq.
Law Office of Thamir A.R. Kaddouri, Jr., Milne Law Group, P.A.
P.A. 301 East Pine Street, Suite 525
3220 West Cypress Street Orlando, Florida 32801
Tampa, Florida 33607 pkapsales@milnelawgroup.com
Telephone: 813-379-5752 mefta@milnelawgroup.com
thamir.kaddouri@tampalaw.org eservice@milnelawgroup.com
beth.tobey@tampalaw.org
Jessica.ayala@Tampalaw.org
service@tampalaw.org
Counsel for Royal Oak Homes, LLC Counsel for Hugh MacDonald
Luis Prats, Esq. Construction, Inc. (HMC)
Robin H. Leavengood, Esq. Ashley Mattingly, Esq.
Lannie D. Hough, Jr., Esq. Denise M. Anderson, Esq.
James Michael Walls, Esq. Butler Weihmuller Katz Craig
Robin H. Leavengood, Esq. 400 North Ashley Drive, Suite 2300
Carlton Fields, P.A. Tampa, Florida 33602
4221 W. Boy Scout Boulevard amattingly@butler.legal
Tampa, Florida 33607-5708 dandersom@butler.legal
lprats@carltonfields.com kreick@butler.legal
rleavengood@carltonfields.com rjorge@butler.legal
lhough@carltonfields.com
nbonilla@carltonfields.com
ejohnson@carltonfields.com
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H AM I LT ON, MI L L E R & B I RT HI SE L, LLP
150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690
CASE NO. 2020-CA-002942-ON
SERVICE LIST
Counsel for Don King’s Concrete, Inc. Counsel for Advanced Wrapping and
Denise M. Anderson, Esq. Concrete Solutions of Central
David Mercer, Esq. Florida, Inc.
Butler Weihmuller Katz Craig, LLP Jayne Ann Pittman, Esq.
400 North Ashley Drive, Suite 2300 Natalie Fischer, Esq.
Tampa, Florida 33602 Conroy Simberg
danderson@butler.legal Two South Orange Avenue, Suite 300
dmercer@butler.legal Orlando, Florida 32801
jjacobs@butler.legal eserviceorl@conroysimberg.com
mmilligan@butler.legal jpittman@conroysimberg.com
nfischer@conroysimberg.com
mmaitland@conroysimberg.com
Counsel for All Glass Installation Counsel for Atlantic Concrete
Corp. Systems, Inc.
William M. Woods, Esq. Monal Zipper, Esq.
Joseph M. Cline, Esq. Jennifer L. Shippole, Esq.
Law Office of William Woods Law Office of Jennifer L. Shippole
100 S. Missouri Avenue, Suite 201 14050 N.W. 14th Street, Suite 180
Clearwater, Florida 33756 Sunrise, Florida 33323
wwoods@willwoodslaw.com jshippole@fednat.com
josephc@willwoodslaw.com mzipper@fednat.com
marital@willwoodslaw.com pleadings@fednat.com
pleadins@willwoodslaw.com
Counsel for Well Hung Windows & Counsel for Wolf’s Irrigation &
Doors, LLC Landscaping, Inc.
Richard L. Russo, Esq. Chelsey “Chet” G. Moody, Jr., Esq.
Law Office of Richard L. Russo Mai M. Le, Esq.
505 Maitland Avenue, Suite 1000 Moody & Graf, P.A.
Altamonte Springs, Florida 32701 1101 N. Lake Destiny Road, Suite 200
rrusso@wfmblaw.com Maitland, Florida 32751
cmoody@moodygraf.com
and mle@moodygraf.com
kbraund@moodygraf.com
Cole J. Copertino, Esq. iperera@moodygraf.com
Wright, Fulford, Moorehead &
Brown, P.A.
505 Maitland Avenue, Suite 1000
Alamonte Springs, Florida 32701
ccopertino@wfmblaw.com
cbraungart@wfmblaw.com
lwilliams@wfmblaw.com
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H AM I LT ON, MI L L E R & B I RT HI SE L, LLP
150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690
CASE NO. 2020-CA-002942-ON
SERVICE LIST
Counsel for Lois Concrete Corp. Counsel for Weintraub Inspections &
Joseph L. Zollner, Esq. Forensics, Inc. n/k/a Weintraub
Law Office of J. Christopher Norris Engineering Inspections, Inc.
P.O. Box 7217 Timothy C. Ford, Esq.
London, KY 40742 Andrew E. Holway, Esq.
joseph.zollner@libertymutual.com Hill Ward Henderson
FloridaCDLegalMail@LibertyMutual.com 101 E. Kennedy Boulevard, Suite 3700
Tampa, Florida 33602
andrew.holway@hwhlaw.com
tim.ford@hwhlaw.com
rocco.cafaro@hwhlaw.com
ron.espinal@hwhlaw.com
kathy.wernsing@hwlaw.com
tracy.coale@hwlaw.com
derrick.calandra@hwlaw.com
jill.kuty@hwhlaw.com
Counsel for Casey Hawkins Glass Inc. Counsel for T&M Construction of
Michael D. Ruel, Esq. Sanford, Inc.
Phillip S. Howell, Esq. Andrew T. Marshall, Esq.
Brenden C. Collins, Esq. Hamilton Price, P.A.
Galloway Johnson Thompkins Burr & 2400 Manatee Avenue W.
Smith Bradenton, Florida 34205
400 N. Ashley Drive, Suite 1000 andrew@hamiltonpricelaw.com
Tampa, Florida 33602 nancy@hamiltonpricelaw.com
phowell@gallowaylawfirm.com kelsey@hamiltonpricelaw.com
bcollins@gallowaylawfirm.com
mruel@gallowaylawfirm.com and
William M. Woods, Esq.
Joseph M. Cline, Esq.
Law Office of William Woods
100 S. Missouri Avenue, Suite 201
Clearwater, Florida 33756
Wwoods@willwoodslaw.com
Pleadings@willwoodslaw.com
JosephC@willwoodslaw.com
MaritaL@willwoodslaw.com
- 21 -
H AM I LT ON, MI L L E R & B I RT HI SE L, LLP
150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690
CASE NO. 2020-CA-002942-ON
SERVICE LIST
Counsel for Helberg Enterprises, Counsel for Hobbit Windows, LLC
LLC Todd M. Ladouceur, Esq.
Scott Ross, Esq. Jerrilynn Hadley, Esq.
Mary O’Brien, Esq. Galloway, Johnson, Tompkins, Burr and
Groelle & Salmon, P.A. Smith, PLC
1715 N. Westshore Boulevard, #320 118 E. Garden Street
Tampa, Florida 33607 Pensacola, Florida 32502
gstcourtdocs@gspalaw.com TMLConstruction@gallowaylawfirm.com
sross@gspalaw.com
cebanks@gspalaw.com
Counsel for TGK Stucco, Inc. Counsel for E.R.O. Construction, Inc.
Jennifer Miller Brooks, Esq. Wayne M. Alder, Esq.
Jackeline Rodriguez, Esq. Fisher Broyles, LLP
Kira Tsiring, Esq. 7668 N.W. 125th Way
Hamilton, Miller & Birthisel, LLP Pompano Beach, Florida 33076
150 S.E. Second Avenue, Suite 1200 Wayne.alder@fisherbroyles.com
Miami, Florida 33131 wmalder@bellsouth.net
jmiller@hamiltonmillerlaw.com
jrodriguez@hamiltonmillerlaw.com
ktsiring@hamiltonmillerlaw.com
- 22 -
H AM I LT ON, MI L L E R & B I RT HI SE L, LLP
150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690
Preview
Filing # 170673532 E-Filed 04/10/2023 03:59:22 PM IN THE CIRCUIT COURT OF THE 9TH JUDICIAL CIRCUIT, IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NO. 2020-CA-002942-ON VILLAS AT EMERALD LAKE HOME- OWNERS ASSOCIATION, INC., a Florida not for profit corporation, Plaintiff, v. ROYAL OAK HOMES, LLC, a Florida lim- ited liability company; ADVANCED WRAPPING AND CONCRETE SOLU- TIONS OF CENTRAL FLORIDA, INC., a Florida corporation; DON KING’S CON- CRETE, INC., a Florida corporation; HUGH MacDONALD CONSTRUCTION, INC., a Florida corporation; IMPERIAL BUILDING CORPORATION, a Florida cor- poration; TGK STUCCO, INC., a Florida corporation; WEATHERMASTER BUILD- ING PRO- DUCTS, 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; WOLR’S IRRIGATION & LANDSCAPING, INC., a Florida corporation; SUMMERPARK HOMES, INC., a Florida corporation; BROWN + COMPANY ARCHITECTURE, INC., a Florida corporation, Defendants, / ROYAL OAK HOMES, LLC, a Florida limited liability company; Crossclaim Plaintiff, v. ADVANCED WRAPPING AND CON- CRETE SOLUTION OF CENTRAL FLORIDA, INC., a Florida corporation; DON KING’S CONCRETE, INC., a Florida corporation; HUGH MacDONALD CON- STRUCTION, INC., a Florida corporation; IMPERIAL BUILDING CORPORATION, a Florida corporation; PREMIER PLAS- TERING OF CENTRAL FLORIDA, INC. n/k/a TGK STUCCO, INC., a Florida cor- poration; WEATHERMASTER BUILDING H AM I LT ON, MI L L E R & B I RT HI SE L, LLP 150 Southeast Second Avenue, Suite 1200 · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690 CASE NO. 2020-CA-002942-ON PRODUCTS, INC., a Florida corporation; WEINTRAUB INSPECTIONS & FOREN- SICS, INC. n/k/a WEINTRAUB ENGI- NEERING AND INSPECTIONS, INC., a Florida corporation; WOLF’S IRRIGATION & LANDSCAPING, INC., a Florida corpora- tion; BROWN+ COMPANY ARCHITEC- TURE, INC., a Florida corporation; Crossclaim Defendants. / WEATHERMASTER BUILDING PROD- UCTS, INC., a Florida corporation., Third-Party Plaintiff, v. ALL GLASS INSTALLATION CORP., a Florida profit corporation; CASEY HAWKINS, GLASS, INC., a Florida corpo- ration; DEAN NESBIT, LLC, a Florida limited liability company; HELBERG ENTERPRISES, 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. / WEATHERMASTER BUILDING PROD- UCTS, INC., a Florida corporation, Third-Party Plaintiff, vs. ALL GLASS INSTALLATION CORP., a Florida corporation; CASEY HAWKINS GLASS, INC., a Florida corporation; DEAN NESBIT, LLC, a Florida limited liability company; HELBERG ENTER- PRISES, 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 WIN- DOWS, INC., a Florida corporation; and WELL HUNG WINDOWS & DOORS, LLC, a Florida limited liability company, Third-Party Defendants. -2- H AM I LT ON, MI L L E R & B I RT HI SE L, LLP 150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690 CASE NO. 2020-CA-002942-ON / DON KING’S CONCRETE, INC., a Florida corporation, Third-Party Plaintiff, vs. E.R.O. CONSTRUCTION, INC., a Florida corporation; LIOS CONCRETE CORP., a Florida corporation; and ATLANTIC CONCRETE SYSTEMS, INC., a Florida corporation, Third-Party Defendants. / DEFENDANT/CROSSCLAIM DEFENDANT’S TGK STUCCO, INC. ANSWER TO ROYAL OAK HOMES LLC SECOND AMENDED CROSS-CLAIM Defendant/Cross-Claim Defendant, TGK STUCCO, INC. (“TGK”), by and through undersigned counsel, files its Answer and Affirmative Defenses to Royal Oak Homes, LLC’ Second Amended Cross-Claims and states: Jurisdiction and Venue 1. Without knowledge, therefore denied. 2. Admitted. 3. Without knowledge, therefore denied. 4. Admitted for jurisdictional purposes and otherwise denied. Parties 5. Without knowledge, therefore denied. 6. Without knowledge, therefore denied. 7. Without knowledge, therefore denied. 8. Without knowledge, therefore denied. 9. Without knowledge, therefore denied. -3- H AM I LT ON, MI L L E R & B I RT HI SE L, LLP 150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690 CASE NO. 2020-CA-002942-ON 10. TGK admits it was a Florida corporation authorized to do business in Florida. As to remaining allegations, TGK is without knowledge, therefore denied. 11. Without knowledge, therefore denied. 12. Without knowledge, therefore denied. 13. Without knowledge, therefore denied. 14. Without knowledge, therefore denied. General Allegations 15. Denied as to TGK, as to remaining allegations, without knowledge, therefore denied. 16. Without knowledge, therefore denied. 17. Denied as to TGK, as to remaining allegations, without knowledge, therefore denied. 18. Without knowledge, therefore denied. Count One – Breach of Contract (Advanced Wrapping) 19. TGK repeats and realleges its responses in paragraphs “1” through “18” of this answer as though fully stated herein. 20. The allegations contained in paragraphs “20” through “29” are not directed to TGK and thus do not require a response. To the extent a response is required, TGK is without knowledge and therefore the allegations are denied. -4- H AM I LT ON, MI L L E R & B I RT HI SE L, LLP 150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690 CASE NO. 2020-CA-002942-ON Count Two – Negligence (Advanced Wrapping) 21. TGK repeats and realleges its answers contained in paragraphs “1” though “18” as though fully stated herein. 22. The allegations contained in paragraphs “31” through “33” are not directed to TGK and thus do not require a response. To the extent a response is required, TGK is without knowledge and therefore the allegations are denied. Count Three – Statutory Cause of Action (Advanced Wrapping) 23. TGK repeats and realleges its answers contained in paragraphs “1: through “18” as though fully stated herein. 24. The allegations contained in paragraphs “35” through “41” are not directed to TGK and thus do not require a response. To the extent a response is required, TGK is without knowledge and therefore the allegations are denied. Count Four – Breach of Contract (Don King) 25. TGK repeats and realleges its answers contained in paragraphs “1” though “18” as though fully stated herein. 26. The allegations contained in paragraphs “43” through “52” are not directed to TGK and thus do not require a response. To the extent a response is required, TGK is without knowledge and therefore the allegations are denied. Count Five – Negligence (Don King) 27. TGK repeats and realleges its answers contained in paragraphs “1” though “18” as though fully stated herein. -5- H AM I LT ON, MI L L E R & B I RT HI SE L, LLP 150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690 CASE NO. 2020-CA-002942-ON 28. The allegations contained in paragraphs “54” through “56” are not directed to TGK and thus do not require a response. To the extent a response is required, TGK is without knowledge and therefore the allegations are denied. Count Six – Statutory Cause of Action (Don King) 29. TGK repeats and realleges its answers contained in paragraphs “1” though “18” as though fully stated herein. 30. The allegations contained in paragraphs “58” through “64” are not directed to TGK and thus do not require a response. To the extent a response is required, TGK is without knowledge and therefore the allegations are denied. Count Seven – Action to Reestablish Lost Documents (Don King) 31. TGK repeats and realleges its answers contained in paragraphs “1” though “18” and “26” as though fully stated herein. 32. The allegations contained in paragraphs “66” through “71” are not directed to TGK and thus do not require a response. To the extent a response is required, TGK is without knowledge and therefore the allegations are denied. Count Eight – Breach of Contract (Expert Painting) 33. TGK repeats and realleges its answers contained in paragraphs “1” though “18” as though fully stated herein. 34. The allegations contained in paragraphs “73” through “82” are not directed to TGK and thus do not require a response. To the extent a response is required, TGK is without knowledge and therefore the allegations are denied. -6- H AM I LT ON, MI L L E R & B I RT HI SE L, LLP 150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690 CASE NO. 2020-CA-002942-ON Count Nine – Negligence (Expert Painting) 35. TGK repeats and realleges its answers contained in paragraphs “1” though “18” as though fully stated herein. 36. The allegations contained in paragraphs “84” through “86” are not directed to TGK and thus do not require a response. To the extent a response is required, TGK is without knowledge and therefore the allegations are denied. Count Ten – Statutory Cause of Action (Expert Painting) 37. TGK repeats and realleges its answers contained in paragraphs “1” though “18” as though fully stated herein. 38. The allegations contained in paragraphs “88” through “94” are not directed to TGK and thus do not require a response. To the extent a response is required, TGK is without knowledge and therefore the allegations are denied. Count Eleven – Breach of Contract (Hugh MacDonald) 39. TGK repeats and realleges its answers contained in paragraphs “1” though “18” as though fully stated herein. 40. The allegations contained in paragraphs “96” through “105” are not directed to TGK and thus do not require a response. To the extent a response is required, TGK is without knowledge and therefore the allegations are denied. Count Twelve – Negligence (Hugh MacDonald) 41. TGK repeats and realleges its answers contained in paragraphs “1” though “18” as though fully stated herein. -7- H AM I LT ON, MI L L E R & B I RT HI SE L, LLP 150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690 CASE NO. 2020-CA-002942-ON 42. The allegations contained in paragraphs “107” through “109” are not directed to TGK and thus do not require a response. To the extent a response is required, TGK is without knowledge and therefore the allegations are denied. Count Thirteen – Statutory Cause of Action (High MacDonald) 43. TGK repeats and realleges its answers contained in paragraphs “1” though “18” as though fully stated herein. 44. The allegations contained in paragraphs “111” through “117” are not directed to TGK and thus do not require a response. To the extent a response is required, TGK is without knowledge and therefore the allegations are denied. Count Fourteen – Breach of Contract (Imperial Boarding) 45. TGK repeats and realleges its answers contained in paragraphs “1” though “18” as though fully stated herein. 46. The allegations contained in paragraphs “119” through “128” are not directed to TGK and thus do not require a response. To the extent a response is required, TGK is without knowledge and therefore the allegations are denied. Count Fifteen – Negligence (Imperial Boarding) 47. TGK repeats and realleges its answers contained in paragraphs “1” though “18” as though fully stated herein. 48. The allegations contained in paragraphs “130” through “132” are not directed to TGK and thus do not require a response. To the extent a response is required, TGK is without knowledge and therefore the allegations are denied. -8- H AM I LT ON, MI L L E R & B I RT HI SE L, LLP 150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690 CASE NO. 2020-CA-002942-ON Count Sixteen – Statutory Cause of Action (Imperial Boarding) 49. TGK repeats and realleges its answers contained in paragraphs “1” though “18” as though fully stated herein. 50. The allegations contained in paragraphs “134” through “140” are not directed to TGK and thus do not require a response. To the extent a response is required, TGK is without knowledge and therefore the allegations are denied. Count Seventeen – Breach of Contract (TGK Stucco) 141. TGK repeats and realleges its answers contained in paragraphs “1” though “18” as though fully stated herein. 142. Royal Oak’s cross-claim speaks for itself, otherwise denied. 143. Denied. 144. Plaintiff’s complaint speaks for itself, otherwise denied. 145. Denied. 146. Denied. 147. Without knowledge, therefore denied. 148. Denied. 149. Denied. 150. Denied. 151. Denied. Count Eighteen – Negligence (TGK Stucco) 152. TGK repeats and realleges its answers contained in paragraphs “1” though “18” as though fully stated herein. -9- H AM I LT ON, MI L L E R & B I RT HI SE L, LLP 150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690 CASE NO. 2020-CA-002942-ON 153. Without knowledge, therefore denied. 154. Denied. 155. Denied. Count Nineteen – Statutory Cause of Action (TGK Stucco) 156. TGK repeats and realleges its answers contained in paragraphs “1” though “18” as though fully stated herein. 157. Royal Oak’s Cross-Claim speaks for itself, otherwise denied. 158. Without knowledge, therefore denied. 159. Plaintiff’s Complaint speaks for itself, otherwise denied. 160. Denied. 161. Denied. 162. Denied. 163. Denied. Count Twenty – Breach of Contract (Weathermaster) 164. TGK repeats and realleges its answers contained in paragraphs “1” though “18” as though fully stated herein. 165. The allegations contained in paragraphs “165” through “174” are not directed to TGK and thus do not require a response. To the extent a response is required, TGK is without knowledge and therefore the allegations are denied. Count Twenty-One – Negligence (Weathermaster) 166. TGK repeats and realleges its answers contained in paragraphs “1” though “18” as though fully stated herein. - 10 - H AM I LT ON, MI L L E R & B I RT HI SE L, LLP 150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690 CASE NO. 2020-CA-002942-ON 167. The allegations contained in paragraphs “176” through “178” are not directed to TGK and thus do not require a response. To the extent a response is required, TGK is without knowledge and therefore the allegations are denied. Count Twenty-Two – Statutory Cause of Action (Weathermaster) 168. TGK repeats and realleges its answers contained in paragraphs “1” though “18” as though fully stated herein. 169. The allegations contained in paragraphs “180” through “186” are not directed to TGK and thus do not require a response. To the extent a response is required, TGK is without knowledge and therefore the allegations are denied. Count Twenty-Three – Breach of Contract (Weintraub Engineering) 170. TGK repeats and realleges its answers contained in paragraphs “1” though “18” as though fully stated herein. 171. The allegations contained in paragraphs “188” through “197” are not directed to TGK and thus do not require a response. To the extent a response is required, TGK is without knowledge and therefore the allegations are denied. Count Twenty-Four – Negligence (Weintraub) 172. TGK repeats and realleges its answers contained in paragraphs “1” though “18” as though fully stated herein. 173. The allegations contained in paragraphs “199” through “201” are not directed to TGK and thus do not require a response. To the extent a response is required, TGK is without knowledge and therefore the allegations are denied. - 11 - H AM I LT ON, MI L L E R & B I RT HI SE L, LLP 150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690 CASE NO. 2020-CA-002942-ON Count Twenty-Five – Breach of Contract (Wolf’s Irrigation) 174. TGK repeats and realleges its answers contained in paragraphs “1” though “18” as though fully stated herein. 175. The allegations contained in paragraphs “203” through “212” are not directed to TGK and thus do not require a response. To the extent a response is required, TGK is without knowledge and therefore the allegations are denied. Count Twenty-Six – Negligence (Wolf’s Irrigation) 176. TGK repeats and realleges its answers contained in paragraphs “1” though “18” as though fully stated herein. 177. The allegations contained in paragraphs “214” through “216” are not directed to TGK and thus do not require a response. To the extent a response is required, TGK is without knowledge and therefore the allegations are denied. Count Twenty-Seven – Statutory Cause of Action (Wolf’s Irrigation) 178. TGK repeats and realleges its answers contained in paragraphs “1” though “18” as though fully stated herein. 179. The allegations contained in paragraphs “218” through “224” are not directed to TGK and thus do not require a response. To the extent a response is required, TGK is without knowledge and therefore the allegations are denied. Count Twenty-Eight – Breach of Contract (Brown & Co) 180. TGK repeats and realleges its answers contained in paragraphs “1” though “18” as though fully stated herein. - 12 - H AM I LT ON, MI L L E R & B I RT HI SE L, LLP 150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690 CASE NO. 2020-CA-002942-ON 181. The allegations contained in paragraphs “226” through “235” are not directed to TGK and thus do not require a response. To the extent a response is required, TGK is without knowledge and therefore the allegations are denied. Count Twenty-Nine – Professional Negligence (Brown & Co) 182. TGK repeats and realleges its answers contained in paragraphs “1” though “18” as though fully stated herein. 183. The allegations contained in paragraphs “237” through “244” are not directed to TGK and thus do not require a response. To the extent a response is required, TGK is without knowledge and therefore the allegations are denied. Count Thirty – Statutory Cause of Action (Brown & Co) 184. TGK repeats and realleges its answers contained in paragraphs “1” though “18” as though fully stated herein. 185. The allegations contained in paragraphs “246” through “252” are not directed to TGK and thus do not require a response. To the extent a response is required, TGK is without knowledge and therefore the allegations are denied. AFFIRMATIVE DEFENSES 1. TGK is entitled to an apportionment of damages in relation to the degree of fault, if any, of all parties, entities, or persons (named in this action or unnamed), pursuant to section 768.81, Florida Statutes, and the principles of law set forth by Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993). PREMIER specifically names each and every party to this action, and any affiliates of the aforementioned, and any other persons or entities involved with the construction of the Project, - 13 - H AM I LT ON, MI L L E R & B I RT HI SE L, LLP 150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690 CASE NO. 2020-CA-002942-ON whose identity remains unknown, who were negligent and at fault for any damages proven by ROYAL OAK and Plaintiff. 2. ROYAL OAK's and the Plaintiff's claims are barred because TGK followed the plans and specifications in performing its work on the Project such that TGK cannot be held liable for any loss or damages resulting from defective plans and specifications and ROYAL OAKS's and the Plaintiff's claims are therefore barred by the doctrine espoused under United States v. Spearin, 248 U.S. 132 (1918) and its progeny. 3. ROYAL OAK and Plaintiff had a duty to mitigate their damages, and any recovery by ROYAL OAK and Plaintiff in this action should be reduced to the extent which ROYAL OAK and Plaintiff failed to mitigate their damages. 4. Any alleged defects or deficiencies in any work performed by TGK at the Project are a result of a lack of proper maintenance, abuse, or neglect by the Plaintiff and/or ROYAL OAK, rather than defective materials or original work performed by TGK. 5. ROYAL OAK's and Plaintiff’s claims may be barred or limited by spoliation of evidence to the extent ROYAL OAK and/or the Plaintiff engaged in repairs and other activities without notice to TGK that disturbed the original conditions of the Project. 6. To the extent other parties or persons (including the Plaintiff, ROYAL OAK, Defendants, and/or Crossclaim Defendants) subsequently modified or altered the work of TGK, TGK cannot be held liable. - 14 - H AM I LT ON, MI L L E R & B I RT HI SE L, LLP 150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690 CASE NO. 2020-CA-002942-ON 7. ROYAL OAK's and the Plaintiff's claims are barred, in whole or in part, to the extent that the alleged damages were caused by intervening or superseding causes over which TGK had no control. 8. ROYAL OAK's alleged damages are barred to the extent they are speculative, excessive, remote, contingent, prospective, uncertain, improbable, not reasonably ascertainable, were unforeseeable, and do not logically, naturally, probably, or proximately flow from any alleged breach of duty. 9. The designer of the Project was charged with the non-delegable duty of ensuring that the design conformed with and met all applicable laws, regulations and building codes, as required by Atlantic National Bank of Jacksonville v. Modular Age, Inc., 363 So. 2d 1152 (Fla. 1st DCA 1978). TGK followed the plans and specifications in performing its work on the Project, and to the extent that the design or specified materials do not conform with all applicable laws, regulations, or building codes, TGK is not legally responsible for same. 10. Any damages suffered by ROYAL OAK, if any, were the result of acts of nature over which TGK had no control. 11. ROYAL OAK's and the Plaintiff's claims are barred, in whole or in part, to the extent a lack of causal relationship exists between the alleged damages and TGK’S work. 12. To the extent the remediation proposed or performed by ROYAL OAK or the Plaintiff, has resulted, or will result in economic waste, TGK is not legally - 15 - H AM I LT ON, MI L L E R & B I RT HI SE L, LLP 150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690 CASE NO. 2020-CA-002942-ON responsible for economically wasteful remediation to the Project. See Grossman Holdings Ltd. v. Hourihan, 414 So. 2d 1037 (Fla. 1982). 13. ROYAL OAK's and/or the Plaintiff's damages, if any, are barred and/or must be reduced in accordance with the principles of "first cost" and "betterment," which consist of costs that have or will result in betterment to the Project beyond what was called for in the applicable plans and specifications. TGK cannot be held liable therefor or is entitled to a set-off for the value of such betterment. See Grossman v. Sea Air Towers Ltd., 513 So. 2d 686 (Fla. 3d DCA 1987). 14. ROYAL OAK's claims must be set off and reduced to the extent ROYAL OAK receives payment or consideration from other parties or non-parties for its alleged damages. 15. ROYAL OAK's claims are barred by the applicable statute of limitations and repose, as set forth in section 95.11, Florida Statutes. 16. In the event ROYAL OAK prevails on any claims, TGK is entitled to a setoff from any and all settlements, releases and/or hold harmless agreements pursuant to section 768.041, Florida Statutes and applicable Florida law. 17. TGK is not liable to ROYAL OAK and/or the Plaintiff because the defects complained of were patent and obvious in nature. See Slavin v. Kaye, 108 So. 2d 462 (Fla. 1959). 18. Any alleged defects in TGK’s scope of work are wholly the result of normal wear and tear and/or damages due to weather conditions or other causes or circumstances. - 16 - H AM I LT ON, MI L L E R & B I RT HI SE L, LLP 150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690 CASE NO. 2020-CA-002942-ON 19. ROYAL OAK's claims are barred, in whole or in part, by the doctrines of waiver, estoppel, and acquiescence, to the extent ROYAL OAK approved of TGK’s work during construction and at completion of the Project. 20. To the extent applicable and available to TGK, TGK hereby incorporates herein all affirmative defenses alleged or to be alleged by all other Crossclaim Defendants to ROYAL OAK's claims. 21. TGK is not liable for any alleged deficiencies in its work because its work was inspected and approved by Weintraub, an independent contractor hired by Royal Oak, as well as the appropriate Department of Building officials. 22. TGK reserves the right to amend its Affirmative Defenses as discovery proceeds in this action and information supporting amendment of its Affirmative Defenses becomes known to TGK. DEMAND FOR JURY TRIAL TGK demands a trial by jury on all issues triable by a jury as of right Respectfully submitted, /s/ Kira Tsiring Jackeline Rodriguez Florida Bar No. 70435 jrodriguez@hamiltonmillerlaw.com Kira Tsiring Fla. Bar No. 1023953 ktsiring@hamiltonmillerlaw.com HAMILTON, MILLER & BIRTHISEL, LLP 150 Southeast Second Avenue, Suite 1200 Miami, Florida 33131-2332 Telephone: 305-379-3686 Facsimile: 305-379-3690 Attorneys for Defendant/Crossclaim Defendant - 17 - H AM I LT ON, MI L L E R & B I RT HI SE L, LLP 150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690 CASE NO. 2020-CA-002942-ON CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy hereof was served on counsel on the attached Service List via the E-Portal on April 10, 2023. /s/ Kira Tsiring Kira Tsiring - 18 - H AM I LT ON, MI L L E R & B I RT HI SE L, LLP 150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690 CASE NO. 2020-CA-002942-ON SERVICE LIST Counsel for Plaintiff, Villas at Counsel for Brown + Company Emerald Lake Homeowners Architecture, Inc. Association, Inc. Bruce R. Calderon, Esq. Phillip E. Joseph, Esq. Alicia Z. Gross, Esq. Alana Smith, Esq. Barri A. Reisch, Esq. Evan J. Small, Esq. Michael Lynott, Esq. Jeffrey A. Widelitz, Esq. Milber Makris Plousadis & Seiden, LLP Ball Janik, LLP 1900 N.W. Corporate Boulevard 201 East Pine Street – Suite 600 East Tower, Suite 440 Orlando, Florida 32801 Boca Raton, Florida 33431 pjoseph@balljanik.com Telephone: 561-994-7310 esmall@balljanik.com Facsimile: 561-994-7313 jwidelitz@balljanik.com bcalderon@milbermakris.com asmith@balljanik.com agross@milbermakris.com ypalmer@balljanik.com breisch@milbermakris.com mwise@balljanik.com kmcdowell@milbermakris.com orlandodocket@balljanik.com sskowronski@milbermakris.com Counsel for, Imperial Building Counsel for Weathermaster Building Corporation Products, Inc. Thamir A. R. Kaddouri, Jr., Esq. Peter J. Kapsales, Esq. Beth A. Tobey, Esq. Margaret M. Efta, Esq. Law Office of Thamir A.R. Kaddouri, Jr., Milne Law Group, P.A. P.A. 301 East Pine Street, Suite 525 3220 West Cypress Street Orlando, Florida 32801 Tampa, Florida 33607 pkapsales@milnelawgroup.com Telephone: 813-379-5752 mefta@milnelawgroup.com thamir.kaddouri@tampalaw.org eservice@milnelawgroup.com beth.tobey@tampalaw.org Jessica.ayala@Tampalaw.org service@tampalaw.org Counsel for Royal Oak Homes, LLC Counsel for Hugh MacDonald Luis Prats, Esq. Construction, Inc. (HMC) Robin H. Leavengood, Esq. Ashley Mattingly, Esq. Lannie D. Hough, Jr., Esq. Denise M. Anderson, Esq. James Michael Walls, Esq. Butler Weihmuller Katz Craig Robin H. Leavengood, Esq. 400 North Ashley Drive, Suite 2300 Carlton Fields, P.A. Tampa, Florida 33602 4221 W. Boy Scout Boulevard amattingly@butler.legal Tampa, Florida 33607-5708 dandersom@butler.legal lprats@carltonfields.com kreick@butler.legal rleavengood@carltonfields.com rjorge@butler.legal lhough@carltonfields.com nbonilla@carltonfields.com ejohnson@carltonfields.com - 19 - H AM I LT ON, MI L L E R & B I RT HI SE L, LLP 150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690 CASE NO. 2020-CA-002942-ON SERVICE LIST Counsel for Don King’s Concrete, Inc. Counsel for Advanced Wrapping and Denise M. Anderson, Esq. Concrete Solutions of Central David Mercer, Esq. Florida, Inc. Butler Weihmuller Katz Craig, LLP Jayne Ann Pittman, Esq. 400 North Ashley Drive, Suite 2300 Natalie Fischer, Esq. Tampa, Florida 33602 Conroy Simberg danderson@butler.legal Two South Orange Avenue, Suite 300 dmercer@butler.legal Orlando, Florida 32801 jjacobs@butler.legal eserviceorl@conroysimberg.com mmilligan@butler.legal jpittman@conroysimberg.com nfischer@conroysimberg.com mmaitland@conroysimberg.com Counsel for All Glass Installation Counsel for Atlantic Concrete Corp. Systems, Inc. William M. Woods, Esq. Monal Zipper, Esq. Joseph M. Cline, Esq. Jennifer L. Shippole, Esq. Law Office of William Woods Law Office of Jennifer L. Shippole 100 S. Missouri Avenue, Suite 201 14050 N.W. 14th Street, Suite 180 Clearwater, Florida 33756 Sunrise, Florida 33323 wwoods@willwoodslaw.com jshippole@fednat.com josephc@willwoodslaw.com mzipper@fednat.com marital@willwoodslaw.com pleadings@fednat.com pleadins@willwoodslaw.com Counsel for Well Hung Windows & Counsel for Wolf’s Irrigation & Doors, LLC Landscaping, Inc. Richard L. Russo, Esq. Chelsey “Chet” G. Moody, Jr., Esq. Law Office of Richard L. Russo Mai M. Le, Esq. 505 Maitland Avenue, Suite 1000 Moody & Graf, P.A. Altamonte Springs, Florida 32701 1101 N. Lake Destiny Road, Suite 200 rrusso@wfmblaw.com Maitland, Florida 32751 cmoody@moodygraf.com and mle@moodygraf.com kbraund@moodygraf.com Cole J. Copertino, Esq. iperera@moodygraf.com Wright, Fulford, Moorehead & Brown, P.A. 505 Maitland Avenue, Suite 1000 Alamonte Springs, Florida 32701 ccopertino@wfmblaw.com cbraungart@wfmblaw.com lwilliams@wfmblaw.com - 20 - H AM I LT ON, MI L L E R & B I RT HI SE L, LLP 150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690 CASE NO. 2020-CA-002942-ON SERVICE LIST Counsel for Lois Concrete Corp. Counsel for Weintraub Inspections & Joseph L. Zollner, Esq. Forensics, Inc. n/k/a Weintraub Law Office of J. Christopher Norris Engineering Inspections, Inc. P.O. Box 7217 Timothy C. Ford, Esq. London, KY 40742 Andrew E. Holway, Esq. joseph.zollner@libertymutual.com Hill Ward Henderson FloridaCDLegalMail@LibertyMutual.com 101 E. Kennedy Boulevard, Suite 3700 Tampa, Florida 33602 andrew.holway@hwhlaw.com tim.ford@hwhlaw.com rocco.cafaro@hwhlaw.com ron.espinal@hwhlaw.com kathy.wernsing@hwlaw.com tracy.coale@hwlaw.com derrick.calandra@hwlaw.com jill.kuty@hwhlaw.com Counsel for Casey Hawkins Glass Inc. Counsel for T&M Construction of Michael D. Ruel, Esq. Sanford, Inc. Phillip S. Howell, Esq. Andrew T. Marshall, Esq. Brenden C. Collins, Esq. Hamilton Price, P.A. Galloway Johnson Thompkins Burr & 2400 Manatee Avenue W. Smith Bradenton, Florida 34205 400 N. Ashley Drive, Suite 1000 andrew@hamiltonpricelaw.com Tampa, Florida 33602 nancy@hamiltonpricelaw.com phowell@gallowaylawfirm.com kelsey@hamiltonpricelaw.com bcollins@gallowaylawfirm.com mruel@gallowaylawfirm.com and William M. Woods, Esq. Joseph M. Cline, Esq. Law Office of William Woods 100 S. Missouri Avenue, Suite 201 Clearwater, Florida 33756 Wwoods@willwoodslaw.com Pleadings@willwoodslaw.com JosephC@willwoodslaw.com MaritaL@willwoodslaw.com - 21 - H AM I LT ON, MI L L E R & B I RT HI SE L, LLP 150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690 CASE NO. 2020-CA-002942-ON SERVICE LIST Counsel for Helberg Enterprises, Counsel for Hobbit Windows, LLC LLC Todd M. Ladouceur, Esq. Scott Ross, Esq. Jerrilynn Hadley, Esq. Mary O’Brien, Esq. Galloway, Johnson, Tompkins, Burr and Groelle & Salmon, P.A. Smith, PLC 1715 N. Westshore Boulevard, #320 118 E. Garden Street Tampa, Florida 33607 Pensacola, Florida 32502 gstcourtdocs@gspalaw.com TMLConstruction@gallowaylawfirm.com sross@gspalaw.com cebanks@gspalaw.com Counsel for TGK Stucco, Inc. Counsel for E.R.O. Construction, Inc. Jennifer Miller Brooks, Esq. Wayne M. Alder, Esq. Jackeline Rodriguez, Esq. Fisher Broyles, LLP Kira Tsiring, Esq. 7668 N.W. 125th Way Hamilton, Miller & Birthisel, LLP Pompano Beach, Florida 33076 150 S.E. Second Avenue, Suite 1200 Wayne.alder@fisherbroyles.com Miami, Florida 33131 wmalder@bellsouth.net jmiller@hamiltonmillerlaw.com jrodriguez@hamiltonmillerlaw.com ktsiring@hamiltonmillerlaw.com - 22 - H AM I LT ON, MI L L E R & B I RT HI SE L, LLP 150 Southeast Second Avenue, Suite 1200, · Miami, Florida 33131 · Telephone: 305-379-3686 · Facsimile: 305-379-3690