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Filing # 192852921 E-Filed 02/27/2024 04:18:50 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, Case No.: 2020-CA-002942
v.
ROYAL OAK HOMES, LLC, a Florida
limited liability company;
Defendants.
___________________________________/
And All Related Actions.
___________________________________/
PLAINTIFF’S OPPOSITION TO DEFENDANT/CROSSCLAIM
DEFENDANT TGK STUCCO, INC.’S MOTION FOR LEAVE TO FILE
DISPOSITIVE MOTIONS PAST THIS COURT’S DEADLINE
Plaintiff, Villas at Emerald Lake Homeowners Association, Inc.
(“Association”), by and through the undersigned counsel hereby opposes
Defendant/Crossclaim Defendant TGK Stucco, Inc.’s (“TGK”) Motion for Leave to
File Dispositive Motions Past this Court’s Deadline (“MFL”) [D.E. 970] pursuant to
the multiple case management orders (collectively, “CMO”) and Business Court
Procedures (“BCP”) 12.1, and further states the following:
I. BACKGROUND
Page 1 of 16
1. In this case, the Association seeks redress from the defendants for
damages it has suffered—and continues to suffer—as a result of the negligent and
defective construction at the Villas at Emerald Lake townhome community located
in Osceola County, Florida (“Community”).
2. TGK installed, among other things, the lath, stucco, and stucco
accessories at the Community.
3. This case has been pending since 2020 and, on April 12, 2023, the Court
entered a Case Management Order (“CMO”) which set a January 22, 2024, deadline
for parties to submit dispositive motions and supporting legal memoranda.
4. TGK has actively participated in this litigation since, at latest, May 11,
2022.
5. TGK actively participated, conferred, and ultimately agreed to the
deadlines contained in the operative CMO.
6. Prior to Plaintiff’s filing Notice of Non-Compliance with BCP and its
Motion to Strike TGK’s Dispositive Motions as Untimely on February 5, 2024, TGK
did not seek leave of Court for an extension to the dispositive deadline nor conferred
with counsel regarding an extension for the same. See [D.E. 969]; [D.E. 965]; and
[D.E. 970].
7. TGK filed its Motion for Partial Summary Judgment on the Violation
of the Florida Building Code Claims [D.E. 953] and Joinder in
Page 2 of 16
Defendant/Crossclaim Plaintiff, Royal Oak Homes LLC’s (“ROH”) Motion for
Partial Summary Judgment as to Count III of Plaintiff’s Second Amended Complaint
for Breach of Implied Warranties and Claims for Incidental and Consequential
Damages and Incorporated Memorandum of Law [D.E. 952]1 on January 26, 2024
(“TGK’s Dispositive Pleadings”).
8. TGK’s Dispositive Pleadings were not filed on or before January 22,
2024, and, instead, were filed on January 26, 2024.
9. On February 5, 2024, pursuant to Business Court Procedure 12.2, the
Association filed a Notice of Noncompliance regarding TGK’s Dispositive
Pleadings, noting the pleadings are untimely. [D.E. 969].
10. Plaintiff then held a Meet and Confer with counsel for TGK regarding
its untimely Dispositive Pleadings and could not come to a resolution. Accordingly,
Plaintiff filed its Motion to Strike TGK’s Dispositive Pleadings as Untimely on
February 5, 2024. [D.E. 965].
11. On February 7, 2024, two days after the conferral and the filing of
Plaintiff’s Notice of Noncompliance and Plaintiff’s Motion to Strike TGK’s
Dispositive Pleadings as Untimely, TGK filed its present MFL, requesting the Court
1
Plaintiff has since filed a Notice of Voluntary Dismissal without Prejudice as to Count III only against Royal Oak
Homes, LLC and has not brough Breach of Implied Warranty claims against TGK in this action. See Plaintiff’s Notice
of Dropping Claims as to Plaintiff’s Count III – Breach of Implied Warranties Against Royal Oak Homes, LLC, Only,
filing # 19245886, dated February 21, 2024; see also Plaintiff’s Second Amended Complaint (“SAC”) [D.E. 506],
Counts XX (Violation of the Florida Building Code [against TGK]); and XXI (Negligence [against TGK]).
Accordingly, TGK’s Joinder is inapplicable, and the arguments therein should be deemed moot.
Page 3 of 16
give it leave to deem its Dispositive Pleadings timely. [D.E. 970].
12. In sum, TGK has plainly and knowingly failed to comply with this
Court’s Case Management Order and the Business Court Procedures.
13. As such, TGK’s Motion should be denied and TGK’s Dispositive
Motions should be deemed untimely.
II. MEMORANDUM OF LAW
A. Applicable Law.
Section 12.1 of the Business Court Procedures provides that the “court may
impose sanctions on any party (including any unrepresented party) or any attorney .
. . 6) who otherwise fails to comply with the Business Court Procedures or law.
Sanctions may include, without limitation, any, some, or all of the following: an
award of reasonable attorneys’ fees and costs, the striking of pleadings, the entry of
default, the dismissal of the case or a finding of contempt of court.”
B. TGK’s Dispositive Pleadings are Untimely.
TGK’s Dispositive Pleadings are untimely, failed to comply with the CMO
deadlines and the BCP, and therefore, are immaterial and impertinent.
It is worth noting that TGK’s Dispositive Pleadings include a purported
“joinder” in a dispositive pleading filed by another defendant, ROH (“Joinder”).
TGK alleges it “fully and completely incorporated” that pleading such that, should
ROH be dismissed from the action, the “Joinder will survive such dismissal.” See
Page 4 of 16
Joinder. This attempt to avoid the deadlines in the CMO is improper.
TGK knew of the dispositive deadline and failed to comply with it. Further,
prior to Plaintiff’s affirmative conferral, Plaintiff’s filing of Notice of
Noncompliance, and Plaintiff’s Motion to Strike, TGK did not bother to reach out
to Plaintiff’s counsel requesting an agreement to extend the deadlines to file its
Dispositive Pleadings or seek requisite leave to file TGK’s Dispositive Pleadings
from the Court. See [D.E. 969]; [D.E. 965]; and [D.E. 970].
C. The Facts Presented in TGK’s MFL are Inaccurate.
In its MFL, TGK argues that “Due to an oversight on its calendar, TGK did
not file its motion until January 24, 2024, a mere two days late;” and that
“The motions filed by TGK, in large, mirror arguments made by ROH in its timely
motions for summary judgment.” See [D.E. 970] ¶¶ 2-3.
i. The Dispositive Pleadings Were not Filed on January 24, 2024.
The record plainly illustrates that the facts presented in paragraph 2 of TGK’s
MFL are inaccurate, as the E-Filing and the Certificate of Service of the Dispositive
Pleadings themselves are dated January 26, 2024:
See TGK’s Motion for Partial Summary Judgment on the Violation of the Florida
Building Code Claims [D.E. 953].
Page 5 of 16
Id.
See also Joinder [D.E. 952]:
Id.
Regardless of whether TGK’s filings were two or four days late, this does not
absolve TGK from its failure to communicate with counsel and seek reprieve from
the deadlines that it agreed to under the CMO. If TGK had conferred with Plaintiff’s
counsel prior to filing its Dispositive Pleadings late, Plaintiff would likely have
agreed to an extension out of professional courtesy. However, TGK did not confer
with Plaintiff’s counsel and did not give Plaintiff the opportunity to do so. TGK’s
Page 6 of 16
failure to meet CMO deadlines and failure to meet and confer with counsel
disregards BCP and the agreed CMO deadlines. Therefore, TGK’s MFL should be
denied.
ii. TGK’s Dispositive Pleadings Require Factually Distinct Analysis and
Responses from ROH’s Pleadings
TGK attempts to argue in its MFL that because TGK’s Motion for Partial
Summary Judgment on the Violation of the Florida Building Code Claims (“TGK
MSJ”) [D.E. 953] makes tangentially similar legal arguments to ROH’s Motion for
Partial Summary Judgment on Alleged Technical Building Code Violations and
Hypothetical, Speculative Future Damages (“ROH MSJ”) [D.E. 924], that Plaintiff’s
response to the admittedly late filing would mirror the response to “arguments made
by ROH in its timely motions for summary judgment.” MFL, p. 3 ¶ 4 [D.E. 970].
Under this reasoning, TGK attempts to argue that Plaintiff would not be prejudiced
by its late filings. Id.
This assertion is misleading. The ROH MSJ specifically considers facts,
testimony, and legal assertions specific to the claims the Plaintiff has brought
regarding Florida Building Code Violations and resulting damage at the roofs. See
[D.E. 924]. The TGK MSJ considers testimony, facts, and legal assertions regarding
the Florida Building Code Violations and resulting damage from the installation of
the stucco systems and accessories. See [D.E. 953]. Plaintiff’s analysis regarding
expert testimony and damage resulting from the stucco systems would likely not be
Page 7 of 16
exactly the same and, therefore, Plaintiff would indeed be prejudiced by the late
filings. However, this analysis is not relevant at this stage because TGK failed to
confer with Plaintiff prior to filing its Dispositive Pleadings late and did not give
Plaintiff the opportunity to perform that analysis for itself. Again, TGK’s failure to
meet CMO deadlines and failure to meet and confer with counsel disregards BCP
and the agreed CMO deadlines. Therefore, TGK’s MFL should be denied.
D. TGK Failed to Timely Oppose Plaintiff’s Motion to Strike its
Pleadings as Untimely
In further support of Plaintiff’s position opposing TGK’s MFL, TGK
demonstrates further that it continues to disregard BCP and has not opposed
Plaintiff’s Motion to Strike its Dispositive Pleadings as Untimely. See Plaintiff’s
Notice of Fully Briefed Motion filed February 27, 2024. TGK had twenty days from
February 5, 2024, to oppose Plaintiff’s Motion to Strike its Dispositive pleadings
and, to date, has failed to do so. As such, TGK has failed to comply with the BCP
and the CMO deadlines. Accordingly, TGK’s Dispositive Pleadings are untimely,
immaterial, impertinent, and fail to comply with the BCP and the CMO deadlines.
As such, TGK’s Motion for Leave to File Dispositive Motions Past this Court’s
Deadline Should be Denied.
WHEREFORE, the Association respectfully requests the Court deny
Defendant/Crossclaim Defendant TGK Stucco, Inc.’s Motion for Leave to File
Dispositive Motions Past this Court’s Deadline alongside any other relief the Court
Page 8 of 16
deems reasonable and just. Alternatively, if this Court is inclined to grant TGK’s
MFL, Plaintiff respectfully requests 30 days to respond to TGK’s MSJ.
Respectfully submitted,
BALL JANIK LLP
By: /s/ Kasey L. Joyce
Phillip E. Joseph, FL Bar No. 1000368
Evan J. Small, FL Bar No. 57306
Jeffrey A. Widelitz FL Bar No. 105642
Christopher S. Tribbey, FL Bar No. 1003114
Kasey L. Joyce, FL Bar No. 1024705
201 E Pine Street, Suite 600
Orlando, FL 32801
Telephone: (407) 455-5664
Facsimile: (407) 902-2105
pjoseph@balljanik.com
esmall@balljanik.com
jwidelitz@balljanik.com
ctribbey@balljanik.com
kjoyce@balljanik.com
dtodd@balljanik.com
cbetancourt@balljanik.com
bburton@balljanik.com
orlandodocket@balljanik.com
Counsel for Plaintiff Villas at Emerald Lake
Homeowners Association, Inc.
CERTIFICATE OF SERVICE
I certify that a true copy of the foregoing has been filed via the Florida Courts
E-Filing Portal on February 27, 2024.
/s/ Kasey L. Joyce
Kasey L. Joyce
Page 9 of 16
SERVICE LIST
LUIS PRATS THAMIR A.R. KADDOURI, JR.
LANNIE D. HOUGH, JR. PENELOPE T. ROWLETT
JAMES MICHAEL WALLS BETH ANN TOBEY
ROBIN H. LEAVENGOOD Law Office of Thamir A.R. Kaddouri,
Carlton Fields, P.A. Jr. P.A.
4221 W. Boy Scout Boulevard 3220 West Cypress Street
Tampa, FL 33607-5780 Tampa, FL 33607
(813) 223-7000 (813) 879-5752
lprats@carltonfields.com thamir.kaddouri@tampalaw.org
lhough@carltonfields.com service@tampalaw.org
mwalls@carltonfields.com penelope.rowlett@tampalaw.org
rleavengood@carltonfields.com beth.tobey@tampalaw.org
mramos@carltonfields.com
nbonilla@carltonfields.com Counsel for Defendant, Imperial
ejohnson@carltonfields.com Building Corporation
krick@carltonfields.com
Dismissed with Prejudice by Plaintiff,
Counsel for Defendant, Royal Oak Villas at Emerald Lake Homeowners
Homes, LLC Association, Inc. ONLY 12/8/2023
Dismissed with Prejudice by
Defendant/Crossclaim Plaintiff, Royal
Oak Homes, LLC, 12/12/2023
PAUL SIDNEY ELLIOTT PETER J. KAPSALES
P.O. Box 274204 MARGARET M. EFTA
Tampa, FL 33688-4204 Milne Law Group, P.A.
(813) 265-1314 301 E. Pine Street, Suite 525
pse@psejd.com Orlando, FL 32801
(321) 558-7700
Counsel for Defendant, Hugh pkapsales@milnelawgroup.com
MacDonald Construction, Inc. (HMC) mefta@milnelawgroup.com
eservice@milnelawgroup.com
DENISE M. ANDERSON
ASHLEY M. MATTINGLY
Page 10 of 16
DAVID E. BRADLEY, JR Counsel for Defendant/Cross
Butler Weihmuller Katz Craig LLP Defendant/ Third-Party Plaintiff,
400 N. Ashley Drive, Suite 2300 Weathermaster Building Products, Inc.
Tampa, FL 33602
(813) 281-1900 Dismissed with Prejudice by
danderson@butler.legal Defendant/Crossclaim Plaintiff, Royal
amattingly@butler.legal Oak Homes, LLC ONLY 12/21/2023
dbradley@butler.legal
krieck@butler.legal
rjorge@butler.legal
Co-Counsel for Defendant, Hugh
MacDonald Construction, Inc.
DENISE M. ANDERSON ANDREW E. HOLWAY
DAVID A. MERCER J. ROCCO CAFARO
Butler Weihmuller Katz Craig, LLP Hill Ward Henderson
400 N. Ashley Drive, Suite 2300 101 E. Kennedy Blvd., Suite 3700
Tampa, FL 33602 Tampa, FL 33602
danderson@butler.legal (813) 221-3900
dmercer@butler.legal andrew.holway@hwhlaw.com
krieck@butler.legal derrick.calandra@hwhlaw.com
rjorge@butler.legal jill.kuty@hwhlaw.com
tbarry@butler.legal kathy.wernsing@hwhlaw.com
rocco.cafaro@hwhlaw.com
Counsel for Defendant, Don King’s tracy.coale@hwhlaw.com
Concrete, Inc.
Counsel for Defendant/Cross
Dismissed with Prejudice by Plaintiff, Defendant, Weintraub Inspections &
Villas At Emerald Lake Homeowners Forensics, Inc. n/k/a Weintraub
Association, Inc., ONLY 12/28/2023 Engineering and Inspections, Inc.
Dismissed with Prejudice by Plaintiff,
ONLY 12/12/2023
Dismissed with Prejudice by
CrossClaim Plaintiff, 1/192024
JAYNE ANN PITTMAN BRUCE R. CALDERON
NATALIE C. FISCHER ALICIA Z. GROSS
Page 11 of 16
Conroy Simberg BARRI A. REISCH
Two South Orange Avenue, Suite 300 Milber Makris Plousadis & Seiden,
Orlando, FL 32801 LLP
(407) 649-9797 1900 NW Corporate Blvd.
eserviceorl@conroysimberg.com East Tower, Suite 440
jpittman@conroysimberg.com Boca Raton, FL 33431
mmaitland@conroysimberg.com (561) 994-7310
nfischer@conroysimberg.com bcalderon@milbermakris.com
azgross@milbermakris.com
Counsel for Defendant/Cross-Claim breisch@milbermakris.com
Defendantt, Advanced Wrapping and kmcdowell@milbermakris.com
Concrete Solutions of Central Florida, sskowronski@milbermakris.com
Inc.
Counsel for Defendant/Cross-
Dismissed with Prejudice by Plaintiff, Defendant, Brown + Company
ONLY 11/8/2023 Architecture, Inc.
Dismissed with Prejudice by Dismissed with Prejudice by Plaintiff,
Defendant/Crossclaim Plaintiff, Royal ONLY 11/8/2023
Oak Homes, LLC, 12/12/2023
Dismissed with Prejudice by
Defendant/Crossclaim Plaintiff, Royal
Oak Homes, LLC, 12/12/2023
JACKELINE RODRIGUEZ S. SCOTT ROSS
KIRA TSIRING Groelle & Salmon, P.A.
Hamilton, Miller & Birthisel, LLP 1715 N. Westshore Blvd., Suite 320
150 Southeast Second Avenue, Suite Tampa, FL 33607
1200 (813) 849-7200
Miami, FL 33131-2332 gstcourtdocs@gspalaw.com
(305) 379-3686 sross@gspalaw.com
jrodriguez@hamiltonmillerlaw.com cebanks@gspalaw.com
ktsiring@hamiltonmillerlaw.com mcoleman@gspalaw.com
mprieto@hamiltonmillerlaw.com
vbain@hamiltonmillerlaw.com Counsel for Third-Party Defendant,
Helberg Enterprises, LLC
Counsel for Defendant/Cross-
Defendant, TGK Stucco, Inc.
VICKI LAMBERT ANDREW T. MARSHALL
ALEC MASSON SARA W. MAPES
Page 12 of 16
Luks, Santaniello, Petrillo & Cohen Hamilton Price, P.A.
201 S. Orange Avenue, Suite 400 2400 Manatee Ave. W.
Orlando, FL 32801 Bradenton, FL 34205
(407) 540-9170 (941) 748-0550
luksorl-pleadings@ls-law.com andrew@hamiltonpricelaw.com
amason@insurancedefense.net sara@hamiltonpricelaw.com
jpestonit@insurancedefense.net nancy@hamiltonpricelaw.com
kelsey@hamiltonpricelaw.com
Counsel for Third-Party Defendant, atmservice@hamiltonpricelaw.com
Casey Hawkins Glass, Inc.
Counsel for Third-Party Defendant,
PHILLIP S. HOWELL T&M Construction of Sanford, Inc.
BRENDEN C. COLLINS
Galloway, Johnson, Tompkins, Burr & Dismissed with Prejudice by Third-
Smith, P.L.C. Party Plaintiff, Weathermaster
400 N. Ashley Dr., Suite 1000 Building Products, Inc. 1/11/2024
Tampa, FL 33602
(813) 977-1200 WILLIAM M. WOODS
tampaservice@gallowaylawfirm.com JOSEPH M. CLINE
phowell@gallowaylawfirm.com Woods Law Group
bcollinsl@gallowaylawfirm.com 100 S. Missouri Avenue, Suite 201
Clearwater, Fl 33756
Counsel for Third-Party Defendant, (727) 799-1229, Ext. 4072
Casey Hawkins Glass, Inc. wwoods@willwoodslaw.com
josephc@willwoodslaw.com
Dismissed with Prejudice by Third- marital@willwoodslaw.com
Party Plaintiff, Weathermaster sharonmg@woodslawgroupfl.com
Building Products, Inc. 1/11/2024 pleadings@willwoodslaw.com
Counsel for Third-Party Defendants,
T & M Construction of Sanford, Inc.
and All Glass Installation Corp.
T & M Construction of Sanford, Inc.
Dismissed with Prejudice by Third-
Party Plaintiff, Weathermaster
Building Products, Inc. 1/11/2024
All Glass Installation Corp. Dismissed
with Prejudice by Third-Party
Page 13 of 16
Plaintiff, Weathermaster Building
Products, Inc. 1/11/2024
JOSEPH L. ZOLLNER COLE J. COPERTINO
Law Office of Christopher Norris JAMES MICHAEL MOORHEAD
PO Box 7217 Wright, Fulford, Moorhead & Brown,
London, KY 40742 P.A.
(904) 346-5422 505 Maitland Avenue, Suite 1000
floridacdlegalmail@libertymutual.com Altamonte Springs, FL 32701
joseph.zollner@libertymutual.com (407) 425-0234
ccopertino@wfmblaw.com
Counsel for Third-Party Defendant, cbraungart@wfmblaw.com
Lios Concrete Corp mmoorhead@wfmblaw.com
jgarcia@wfmblaw.com
Counsel for Third-Party Defendant,
Well Hung Windows & Doors
MONAL O. ZIPPER CHESLEY G. MOODY, JR.
JENNIFE SHIPPOLE MAI M. LE
Law Office of Jennifer L. Shippole Moody & Graf, P.A.
14050 NW 14th Street, Suite 180 1101 N. Lake Destiny Road, Suite 200
Sunrise, FL 33323 Maitland, FL 32751
(954) 417-3066 Ext. 4645 (407) 755-6900
jlspleadings@fednat.com cmoody@moodygraf.com
mzipper@fednat.com mle@moodygraf.com
jshippole@fednat.com kbraund@moodygraf.com
iperera@moodygraf.com
Counsel for Third-Party Defendant,
Atlantic Concrete Systems, Inc. Counsel for Premier Plastering of
Central Florida, Inc. Withdrew for
Premier Plastering only 3.4.2022 &
Defendant/Cross-Defendant, Wolf’s
Irrigation & Landscaping, Inc.
Defendant/Crossclaim Defendant,
Wolf’s Irrigation & Landscaping, Inc.
Dismissed with Prejudice by Plaintiff,
Royal Oak Homes, LLC ONLY
8/22/2023
Page 14 of 16
Defendant/Crossclaim Defendant,
Wolf’s Irrigation & Landscaping, Inc.
Dismissed with Prejudice by Plaintiff,
Emerald Lake Homeowners
Association, Inc. 8/24/2023
JERRILYNN HADLEY
TODD M. LADAUCEUR WAYNE M. ALDER
Galloway, Johnson, Tompkins, Burr Fisher Broyles, LLP
and Smith, PLC 7668 N. W. 125th Way
118 E. Garden Street Pompano Beach, FL 33076
Pensacola, FL 32502 (954) 603-6174
(850) 436-7000 wayne.alder@fisherbroyles.com
tmlconstruction@gallowaylawfirm.com wmalder@bellsouthnet.com
Counsel for Third-Party Defendant Counsel for Third-Party Defendant,
Hobbit Windows, LLC E.R.O. Construction, Inc. and Well
Done Windows, Inc.
Well Done Windows, Inc. Dismissed
with Prejudice by Defendant/Third-
Party Plaintiff, Weathermaster
Building Products, Inc. 6/9/2023
SHAUN M. QUINN RAYMOND E. WATTS, JR.
JACKELINE RODRIGUEZ ANDREW S. YATKMAN
Hamilton, Miller & Birthisel, LLP Wicker Smith O'hara Mccoy & Ford,
150 S.E. 2nd Avenue, Suite 1200 P.A.
Miami, FL 33131 390 N. Orange Ave., Suite 1000
(305) 379-3686 Orlando, FL 32801
squinn@hamiltonmillerlaw.com (407) 843-3939
jrodriguez@hamiltonmiller.com orlcrtpleadings@wickersmith.com
Counsel for Defendant/ Cross- Counsel for Defendant, Expert
Defendant, Premier Plastering of Painting & Pressure Washing, Inc.
Central Florida, Inc.
Dismissed with Prejudice by Third-
Party Plaintiff, 1/16/2024
GREGORY E. BLACKWELL
KIERAN F. O'CONNOR
Page 15 of 16
ELIZABETH DROZ-STOLINAS
O’Connor & Stolinas Law Group,
PLLC
800 North Magnolia Avenue, Ste 1350
Orlando, FL 32803
(407) 843-2100
gblackwell@oconlaw.com
koconnor@oconlaw.com
tclark@oconlaw.com
edroz-stolinas@oconlaw.com
rps@oconlaw.com
Counsel for Third-Party Defendant,
Expert Painting & Pressure Washing,
Inc.
Dismissed with Prejudice by Third-
Party Plaintiff, 1/16/2024
Page 16 of 16
Preview
Filing # 192852921 E-Filed 02/27/2024 04:18:50 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, Case No.: 2020-CA-002942 v. ROYAL OAK HOMES, LLC, a Florida limited liability company; Defendants. ___________________________________/ And All Related Actions. ___________________________________/ PLAINTIFF’S OPPOSITION TO DEFENDANT/CROSSCLAIM DEFENDANT TGK STUCCO, INC.’S MOTION FOR LEAVE TO FILE DISPOSITIVE MOTIONS PAST THIS COURT’S DEADLINE Plaintiff, Villas at Emerald Lake Homeowners Association, Inc. (“Association”), by and through the undersigned counsel hereby opposes Defendant/Crossclaim Defendant TGK Stucco, Inc.’s (“TGK”) Motion for Leave to File Dispositive Motions Past this Court’s Deadline (“MFL”) [D.E. 970] pursuant to the multiple case management orders (collectively, “CMO”) and Business Court Procedures (“BCP”) 12.1, and further states the following: I. BACKGROUND Page 1 of 16 1. In this case, the Association seeks redress from the defendants for damages it has suffered—and continues to suffer—as a result of the negligent and defective construction at the Villas at Emerald Lake townhome community located in Osceola County, Florida (“Community”). 2. TGK installed, among other things, the lath, stucco, and stucco accessories at the Community. 3. This case has been pending since 2020 and, on April 12, 2023, the Court entered a Case Management Order (“CMO”) which set a January 22, 2024, deadline for parties to submit dispositive motions and supporting legal memoranda. 4. TGK has actively participated in this litigation since, at latest, May 11, 2022. 5. TGK actively participated, conferred, and ultimately agreed to the deadlines contained in the operative CMO. 6. Prior to Plaintiff’s filing Notice of Non-Compliance with BCP and its Motion to Strike TGK’s Dispositive Motions as Untimely on February 5, 2024, TGK did not seek leave of Court for an extension to the dispositive deadline nor conferred with counsel regarding an extension for the same. See [D.E. 969]; [D.E. 965]; and [D.E. 970]. 7. TGK filed its Motion for Partial Summary Judgment on the Violation of the Florida Building Code Claims [D.E. 953] and Joinder in Page 2 of 16 Defendant/Crossclaim Plaintiff, Royal Oak Homes LLC’s (“ROH”) Motion for Partial Summary Judgment as to Count III of Plaintiff’s Second Amended Complaint for Breach of Implied Warranties and Claims for Incidental and Consequential Damages and Incorporated Memorandum of Law [D.E. 952]1 on January 26, 2024 (“TGK’s Dispositive Pleadings”). 8. TGK’s Dispositive Pleadings were not filed on or before January 22, 2024, and, instead, were filed on January 26, 2024. 9. On February 5, 2024, pursuant to Business Court Procedure 12.2, the Association filed a Notice of Noncompliance regarding TGK’s Dispositive Pleadings, noting the pleadings are untimely. [D.E. 969]. 10. Plaintiff then held a Meet and Confer with counsel for TGK regarding its untimely Dispositive Pleadings and could not come to a resolution. Accordingly, Plaintiff filed its Motion to Strike TGK’s Dispositive Pleadings as Untimely on February 5, 2024. [D.E. 965]. 11. On February 7, 2024, two days after the conferral and the filing of Plaintiff’s Notice of Noncompliance and Plaintiff’s Motion to Strike TGK’s Dispositive Pleadings as Untimely, TGK filed its present MFL, requesting the Court 1 Plaintiff has since filed a Notice of Voluntary Dismissal without Prejudice as to Count III only against Royal Oak Homes, LLC and has not brough Breach of Implied Warranty claims against TGK in this action. See Plaintiff’s Notice of Dropping Claims as to Plaintiff’s Count III – Breach of Implied Warranties Against Royal Oak Homes, LLC, Only, filing # 19245886, dated February 21, 2024; see also Plaintiff’s Second Amended Complaint (“SAC”) [D.E. 506], Counts XX (Violation of the Florida Building Code [against TGK]); and XXI (Negligence [against TGK]). Accordingly, TGK’s Joinder is inapplicable, and the arguments therein should be deemed moot. Page 3 of 16 give it leave to deem its Dispositive Pleadings timely. [D.E. 970]. 12. In sum, TGK has plainly and knowingly failed to comply with this Court’s Case Management Order and the Business Court Procedures. 13. As such, TGK’s Motion should be denied and TGK’s Dispositive Motions should be deemed untimely. II. MEMORANDUM OF LAW A. Applicable Law. Section 12.1 of the Business Court Procedures provides that the “court may impose sanctions on any party (including any unrepresented party) or any attorney . . . 6) who otherwise fails to comply with the Business Court Procedures or law. Sanctions may include, without limitation, any, some, or all of the following: an award of reasonable attorneys’ fees and costs, the striking of pleadings, the entry of default, the dismissal of the case or a finding of contempt of court.” B. TGK’s Dispositive Pleadings are Untimely. TGK’s Dispositive Pleadings are untimely, failed to comply with the CMO deadlines and the BCP, and therefore, are immaterial and impertinent. It is worth noting that TGK’s Dispositive Pleadings include a purported “joinder” in a dispositive pleading filed by another defendant, ROH (“Joinder”). TGK alleges it “fully and completely incorporated” that pleading such that, should ROH be dismissed from the action, the “Joinder will survive such dismissal.” See Page 4 of 16 Joinder. This attempt to avoid the deadlines in the CMO is improper. TGK knew of the dispositive deadline and failed to comply with it. Further, prior to Plaintiff’s affirmative conferral, Plaintiff’s filing of Notice of Noncompliance, and Plaintiff’s Motion to Strike, TGK did not bother to reach out to Plaintiff’s counsel requesting an agreement to extend the deadlines to file its Dispositive Pleadings or seek requisite leave to file TGK’s Dispositive Pleadings from the Court. See [D.E. 969]; [D.E. 965]; and [D.E. 970]. C. The Facts Presented in TGK’s MFL are Inaccurate. In its MFL, TGK argues that “Due to an oversight on its calendar, TGK did not file its motion until January 24, 2024, a mere two days late;” and that “The motions filed by TGK, in large, mirror arguments made by ROH in its timely motions for summary judgment.” See [D.E. 970] ¶¶ 2-3. i. The Dispositive Pleadings Were not Filed on January 24, 2024. The record plainly illustrates that the facts presented in paragraph 2 of TGK’s MFL are inaccurate, as the E-Filing and the Certificate of Service of the Dispositive Pleadings themselves are dated January 26, 2024: See TGK’s Motion for Partial Summary Judgment on the Violation of the Florida Building Code Claims [D.E. 953]. Page 5 of 16 Id. See also Joinder [D.E. 952]: Id. Regardless of whether TGK’s filings were two or four days late, this does not absolve TGK from its failure to communicate with counsel and seek reprieve from the deadlines that it agreed to under the CMO. If TGK had conferred with Plaintiff’s counsel prior to filing its Dispositive Pleadings late, Plaintiff would likely have agreed to an extension out of professional courtesy. However, TGK did not confer with Plaintiff’s counsel and did not give Plaintiff the opportunity to do so. TGK’s Page 6 of 16 failure to meet CMO deadlines and failure to meet and confer with counsel disregards BCP and the agreed CMO deadlines. Therefore, TGK’s MFL should be denied. ii. TGK’s Dispositive Pleadings Require Factually Distinct Analysis and Responses from ROH’s Pleadings TGK attempts to argue in its MFL that because TGK’s Motion for Partial Summary Judgment on the Violation of the Florida Building Code Claims (“TGK MSJ”) [D.E. 953] makes tangentially similar legal arguments to ROH’s Motion for Partial Summary Judgment on Alleged Technical Building Code Violations and Hypothetical, Speculative Future Damages (“ROH MSJ”) [D.E. 924], that Plaintiff’s response to the admittedly late filing would mirror the response to “arguments made by ROH in its timely motions for summary judgment.” MFL, p. 3 ¶ 4 [D.E. 970]. Under this reasoning, TGK attempts to argue that Plaintiff would not be prejudiced by its late filings. Id. This assertion is misleading. The ROH MSJ specifically considers facts, testimony, and legal assertions specific to the claims the Plaintiff has brought regarding Florida Building Code Violations and resulting damage at the roofs. See [D.E. 924]. The TGK MSJ considers testimony, facts, and legal assertions regarding the Florida Building Code Violations and resulting damage from the installation of the stucco systems and accessories. See [D.E. 953]. Plaintiff’s analysis regarding expert testimony and damage resulting from the stucco systems would likely not be Page 7 of 16 exactly the same and, therefore, Plaintiff would indeed be prejudiced by the late filings. However, this analysis is not relevant at this stage because TGK failed to confer with Plaintiff prior to filing its Dispositive Pleadings late and did not give Plaintiff the opportunity to perform that analysis for itself. Again, TGK’s failure to meet CMO deadlines and failure to meet and confer with counsel disregards BCP and the agreed CMO deadlines. Therefore, TGK’s MFL should be denied. D. TGK Failed to Timely Oppose Plaintiff’s Motion to Strike its Pleadings as Untimely In further support of Plaintiff’s position opposing TGK’s MFL, TGK demonstrates further that it continues to disregard BCP and has not opposed Plaintiff’s Motion to Strike its Dispositive Pleadings as Untimely. See Plaintiff’s Notice of Fully Briefed Motion filed February 27, 2024. TGK had twenty days from February 5, 2024, to oppose Plaintiff’s Motion to Strike its Dispositive pleadings and, to date, has failed to do so. As such, TGK has failed to comply with the BCP and the CMO deadlines. Accordingly, TGK’s Dispositive Pleadings are untimely, immaterial, impertinent, and fail to comply with the BCP and the CMO deadlines. As such, TGK’s Motion for Leave to File Dispositive Motions Past this Court’s Deadline Should be Denied. WHEREFORE, the Association respectfully requests the Court deny Defendant/Crossclaim Defendant TGK Stucco, Inc.’s Motion for Leave to File Dispositive Motions Past this Court’s Deadline alongside any other relief the Court Page 8 of 16 deems reasonable and just. Alternatively, if this Court is inclined to grant TGK’s MFL, Plaintiff respectfully requests 30 days to respond to TGK’s MSJ. Respectfully submitted, BALL JANIK LLP By: /s/ Kasey L. Joyce Phillip E. Joseph, FL Bar No. 1000368 Evan J. Small, FL Bar No. 57306 Jeffrey A. Widelitz FL Bar No. 105642 Christopher S. Tribbey, FL Bar No. 1003114 Kasey L. Joyce, FL Bar No. 1024705 201 E Pine Street, Suite 600 Orlando, FL 32801 Telephone: (407) 455-5664 Facsimile: (407) 902-2105 pjoseph@balljanik.com esmall@balljanik.com jwidelitz@balljanik.com ctribbey@balljanik.com kjoyce@balljanik.com dtodd@balljanik.com cbetancourt@balljanik.com bburton@balljanik.com orlandodocket@balljanik.com Counsel for Plaintiff Villas at Emerald Lake Homeowners Association, Inc. CERTIFICATE OF SERVICE I certify that a true copy of the foregoing has been filed via the Florida Courts E-Filing Portal on February 27, 2024. /s/ Kasey L. Joyce Kasey L. Joyce Page 9 of 16 SERVICE LIST LUIS PRATS THAMIR A.R. KADDOURI, JR. LANNIE D. HOUGH, JR. PENELOPE T. ROWLETT JAMES MICHAEL WALLS BETH ANN TOBEY ROBIN H. LEAVENGOOD Law Office of Thamir A.R. Kaddouri, Carlton Fields, P.A. Jr. P.A. 4221 W. Boy Scout Boulevard 3220 West Cypress Street Tampa, FL 33607-5780 Tampa, FL 33607 (813) 223-7000 (813) 879-5752 lprats@carltonfields.com thamir.kaddouri@tampalaw.org lhough@carltonfields.com service@tampalaw.org mwalls@carltonfields.com penelope.rowlett@tampalaw.org rleavengood@carltonfields.com beth.tobey@tampalaw.org mramos@carltonfields.com nbonilla@carltonfields.com Counsel for Defendant, Imperial ejohnson@carltonfields.com Building Corporation krick@carltonfields.com Dismissed with Prejudice by Plaintiff, Counsel for Defendant, Royal Oak Villas at Emerald Lake Homeowners Homes, LLC Association, Inc. ONLY 12/8/2023 Dismissed with Prejudice by Defendant/Crossclaim Plaintiff, Royal Oak Homes, LLC, 12/12/2023 PAUL SIDNEY ELLIOTT PETER J. KAPSALES P.O. Box 274204 MARGARET M. EFTA Tampa, FL 33688-4204 Milne Law Group, P.A. (813) 265-1314 301 E. Pine Street, Suite 525 pse@psejd.com Orlando, FL 32801 (321) 558-7700 Counsel for Defendant, Hugh pkapsales@milnelawgroup.com MacDonald Construction, Inc. (HMC) mefta@milnelawgroup.com eservice@milnelawgroup.com DENISE M. ANDERSON ASHLEY M. MATTINGLY Page 10 of 16 DAVID E. BRADLEY, JR Counsel for Defendant/Cross Butler Weihmuller Katz Craig LLP Defendant/ Third-Party Plaintiff, 400 N. Ashley Drive, Suite 2300 Weathermaster Building Products, Inc. Tampa, FL 33602 (813) 281-1900 Dismissed with Prejudice by danderson@butler.legal Defendant/Crossclaim Plaintiff, Royal amattingly@butler.legal Oak Homes, LLC ONLY 12/21/2023 dbradley@butler.legal krieck@butler.legal rjorge@butler.legal Co-Counsel for Defendant, Hugh MacDonald Construction, Inc. DENISE M. ANDERSON ANDREW E. HOLWAY DAVID A. MERCER J. ROCCO CAFARO Butler Weihmuller Katz Craig, LLP Hill Ward Henderson 400 N. Ashley Drive, Suite 2300 101 E. Kennedy Blvd., Suite 3700 Tampa, FL 33602 Tampa, FL 33602 danderson@butler.legal (813) 221-3900 dmercer@butler.legal andrew.holway@hwhlaw.com krieck@butler.legal derrick.calandra@hwhlaw.com rjorge@butler.legal jill.kuty@hwhlaw.com tbarry@butler.legal kathy.wernsing@hwhlaw.com rocco.cafaro@hwhlaw.com Counsel for Defendant, Don King’s tracy.coale@hwhlaw.com Concrete, Inc. Counsel for Defendant/Cross Dismissed with Prejudice by Plaintiff, Defendant, Weintraub Inspections & Villas At Emerald Lake Homeowners Forensics, Inc. n/k/a Weintraub Association, Inc., ONLY 12/28/2023 Engineering and Inspections, Inc. Dismissed with Prejudice by Plaintiff, ONLY 12/12/2023 Dismissed with Prejudice by CrossClaim Plaintiff, 1/192024 JAYNE ANN PITTMAN BRUCE R. CALDERON NATALIE C. FISCHER ALICIA Z. GROSS Page 11 of 16 Conroy Simberg BARRI A. REISCH Two South Orange Avenue, Suite 300 Milber Makris Plousadis & Seiden, Orlando, FL 32801 LLP (407) 649-9797 1900 NW Corporate Blvd. eserviceorl@conroysimberg.com East Tower, Suite 440 jpittman@conroysimberg.com Boca Raton, FL 33431 mmaitland@conroysimberg.com (561) 994-7310 nfischer@conroysimberg.com bcalderon@milbermakris.com azgross@milbermakris.com Counsel for Defendant/Cross-Claim breisch@milbermakris.com Defendantt, Advanced Wrapping and kmcdowell@milbermakris.com Concrete Solutions of Central Florida, sskowronski@milbermakris.com Inc. Counsel for Defendant/Cross- Dismissed with Prejudice by Plaintiff, Defendant, Brown + Company ONLY 11/8/2023 Architecture, Inc. Dismissed with Prejudice by Dismissed with Prejudice by Plaintiff, Defendant/Crossclaim Plaintiff, Royal ONLY 11/8/2023 Oak Homes, LLC, 12/12/2023 Dismissed with Prejudice by Defendant/Crossclaim Plaintiff, Royal Oak Homes, LLC, 12/12/2023 JACKELINE RODRIGUEZ S. SCOTT ROSS KIRA TSIRING Groelle & Salmon, P.A. Hamilton, Miller & Birthisel, LLP 1715 N. Westshore Blvd., Suite 320 150 Southeast Second Avenue, Suite Tampa, FL 33607 1200 (813) 849-7200 Miami, FL 33131-2332 gstcourtdocs@gspalaw.com (305) 379-3686 sross@gspalaw.com jrodriguez@hamiltonmillerlaw.com cebanks@gspalaw.com ktsiring@hamiltonmillerlaw.com mcoleman@gspalaw.com mprieto@hamiltonmillerlaw.com vbain@hamiltonmillerlaw.com Counsel for Third-Party Defendant, Helberg Enterprises, LLC Counsel for Defendant/Cross- Defendant, TGK Stucco, Inc. VICKI LAMBERT ANDREW T. MARSHALL ALEC MASSON SARA W. MAPES Page 12 of 16 Luks, Santaniello, Petrillo & Cohen Hamilton Price, P.A. 201 S. Orange Avenue, Suite 400 2400 Manatee Ave. W. Orlando, FL 32801 Bradenton, FL 34205 (407) 540-9170 (941) 748-0550 luksorl-pleadings@ls-law.com andrew@hamiltonpricelaw.com amason@insurancedefense.net sara@hamiltonpricelaw.com jpestonit@insurancedefense.net nancy@hamiltonpricelaw.com kelsey@hamiltonpricelaw.com Counsel for Third-Party Defendant, atmservice@hamiltonpricelaw.com Casey Hawkins Glass, Inc. Counsel for Third-Party Defendant, PHILLIP S. HOWELL T&M Construction of Sanford, Inc. BRENDEN C. COLLINS Galloway, Johnson, Tompkins, Burr & Dismissed with Prejudice by Third- Smith, P.L.C. Party Plaintiff, Weathermaster 400 N. Ashley Dr., Suite 1000 Building Products, Inc. 1/11/2024 Tampa, FL 33602 (813) 977-1200 WILLIAM M. WOODS tampaservice@gallowaylawfirm.com JOSEPH M. CLINE phowell@gallowaylawfirm.com Woods Law Group bcollinsl@gallowaylawfirm.com 100 S. Missouri Avenue, Suite 201 Clearwater, Fl 33756 Counsel for Third-Party Defendant, (727) 799-1229, Ext. 4072 Casey Hawkins Glass, Inc. wwoods@willwoodslaw.com josephc@willwoodslaw.com Dismissed with Prejudice by Third- marital@willwoodslaw.com Party Plaintiff, Weathermaster sharonmg@woodslawgroupfl.com Building Products, Inc. 1/11/2024 pleadings@willwoodslaw.com Counsel for Third-Party Defendants, T & M Construction of Sanford, Inc. and All Glass Installation Corp. T & M Construction of Sanford, Inc. Dismissed with Prejudice by Third- Party Plaintiff, Weathermaster Building Products, Inc. 1/11/2024 All Glass Installation Corp. Dismissed with Prejudice by Third-Party Page 13 of 16 Plaintiff, Weathermaster Building Products, Inc. 1/11/2024 JOSEPH L. ZOLLNER COLE J. COPERTINO Law Office of Christopher Norris JAMES MICHAEL MOORHEAD PO Box 7217 Wright, Fulford, Moorhead & Brown, London, KY 40742 P.A. (904) 346-5422 505 Maitland Avenue, Suite 1000 floridacdlegalmail@libertymutual.com Altamonte Springs, FL 32701 joseph.zollner@libertymutual.com (407) 425-0234 ccopertino@wfmblaw.com Counsel for Third-Party Defendant, cbraungart@wfmblaw.com Lios Concrete Corp mmoorhead@wfmblaw.com jgarcia@wfmblaw.com Counsel for Third-Party Defendant, Well Hung Windows & Doors MONAL O. ZIPPER CHESLEY G. MOODY, JR. JENNIFE SHIPPOLE MAI M. LE Law Office of Jennifer L. Shippole Moody & Graf, P.A. 14050 NW 14th Street, Suite 180 1101 N. Lake Destiny Road, Suite 200 Sunrise, FL 33323 Maitland, FL 32751 (954) 417-3066 Ext. 4645 (407) 755-6900 jlspleadings@fednat.com cmoody@moodygraf.com mzipper@fednat.com mle@moodygraf.com jshippole@fednat.com kbraund@moodygraf.com iperera@moodygraf.com Counsel for Third-Party Defendant, Atlantic Concrete Systems, Inc. Counsel for Premier Plastering of Central Florida, Inc. Withdrew for Premier Plastering only 3.4.2022 & Defendant/Cross-Defendant, Wolf’s Irrigation & Landscaping, Inc. Defendant/Crossclaim Defendant, Wolf’s Irrigation & Landscaping, Inc. Dismissed with Prejudice by Plaintiff, Royal Oak Homes, LLC ONLY 8/22/2023 Page 14 of 16 Defendant/Crossclaim Defendant, Wolf’s Irrigation & Landscaping, Inc. Dismissed with Prejudice by Plaintiff, Emerald Lake Homeowners Association, Inc. 8/24/2023 JERRILYNN HADLEY TODD M. LADAUCEUR WAYNE M. ALDER Galloway, Johnson, Tompkins, Burr Fisher Broyles, LLP and Smith, PLC 7668 N. W. 125th Way 118 E. Garden Street Pompano Beach, FL 33076 Pensacola, FL 32502 (954) 603-6174 (850) 436-7000 wayne.alder@fisherbroyles.com tmlconstruction@gallowaylawfirm.com wmalder@bellsouthnet.com Counsel for Third-Party Defendant Counsel for Third-Party Defendant, Hobbit Windows, LLC E.R.O. Construction, Inc. and Well Done Windows, Inc. Well Done Windows, Inc. Dismissed with Prejudice by Defendant/Third- Party Plaintiff, Weathermaster Building Products, Inc. 6/9/2023 SHAUN M. QUINN RAYMOND E. WATTS, JR. JACKELINE RODRIGUEZ ANDREW S. YATKMAN Hamilton, Miller & Birthisel, LLP Wicker Smith O'hara Mccoy & Ford, 150 S.E. 2nd Avenue, Suite 1200 P.A. Miami, FL 33131 390 N. Orange Ave., Suite 1000 (305) 379-3686 Orlando, FL 32801 squinn@hamiltonmillerlaw.com (407) 843-3939 jrodriguez@hamiltonmiller.com orlcrtpleadings@wickersmith.com Counsel for Defendant/ Cross- Counsel for Defendant, Expert Defendant, Premier Plastering of Painting & Pressure Washing, Inc. Central Florida, Inc. Dismissed with Prejudice by Third- Party Plaintiff, 1/16/2024 GREGORY E. BLACKWELL KIERAN F. O'CONNOR Page 15 of 16 ELIZABETH DROZ-STOLINAS O’Connor & Stolinas Law Group, PLLC 800 North Magnolia Avenue, Ste 1350 Orlando, FL 32803 (407) 843-2100 gblackwell@oconlaw.com koconnor@oconlaw.com tclark@oconlaw.com edroz-stolinas@oconlaw.com rps@oconlaw.com Counsel for Third-Party Defendant, Expert Painting & Pressure Washing, Inc. Dismissed with Prejudice by Third- Party Plaintiff, 1/16/2024 Page 16 of 16