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Filing # 193071524 E-Filed 02/29/2024 11:39:32 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.
PLAINTIFF’S OPPOSITION TO ROYAL OAK HOMES, LLC’S
MOTION IN LIMINE TO EXCLUDE PLAINTIFF EXPERT
TESTIMONY AS TO THE DUTY OF CARE OWED
BY A GENERAL CONTRACTOR IN FLORIDA
Plaintiff, Villas at Emerald Lake Homeowners Association, Inc. (the
“Association” or “Plaintiff”), by and through its undersigned attorneys, files this
Response and Memorandum of Law in Opposition (“Opposition”) to Defendant
Royal Oak Homes, LLC’s (“ROH”) Motion in Limine to Exclude Plaintiff Expert
Testimony as to the Duty of Care Owed by a General Contractor in Florida [D.E.
959] (“Motion”), and states as follows:
I. INTRODUCTION AND SUMMARY OF ARGUMENT
The instant case arises out of construction and design defects that exist at the
10 buildings and 76 units developed and constructed by ROH and its subcontractors
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the Villas at Emerald Lake townhome community located in Osceola County,
Florida (the “Townhomes” or “Community”). The defective development, design,
and construction work performed, designed, coordinated, and sequenced by ROH,
its designers, private inspectors, and subcontractors at the Community failed to
comply with the applicable Florida Building Codes, contract documents, project
plans, specifications, submittals, and shop drawings. As a result of the defective
construction, the Association began to experience widespread water intrusion
throughout the Townhomes and common areas of the Community, causing
widespread damage and the need for significant repairs.
The Association filed its operative Second Amended Complaint against ROH,
and others, alleging claims of Negligence and Violation of the Building Code
pursuant to § 553.84, Florida Statutes. See Complaint [D.E. 2]; see also Second
Amended Complaint (“SAC”) [D.E. 506]. Pursuant to this Court’s case management
order (“CMO”) deadlines ROH filed its Omnibus Motion in Limine to Exclude
Plaintiff Expert Testimony as to the Duty of Care Owed by A General Contractor in
Florida.
In its Motion, ROH seeks to exclude trial testimony by Plaintiff’s expert
“regarding the duty of care owed by a general contractor like Royal Oak in Florida
because Plaintiff’s expert, Felix Martin, is an engineer, not a licensed general
contractor, and he has no experience as a general contractor in the state of Florida.”
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Motion, p. 3. Here, ROH is attempting to combat the opinions and analysis of
Plaintiff’s liability expert – Felix Martin, P.E. of Marcon Forensics, LLC (“Marcon”)
– by asking the Court to limit any expert testimony regarding the duty of a general
contractor as “Mr. Martin is an engineer, not a licensed general contractor.” Motion,
p. 5. Plaintiff agrees and disagrees with ROH.
ROH is correct in that Plaintiff’s only liability expert is a professional
engineer and has never held a general contractor’s license. However, ROH’s Motion
should be denied because ROH’s duty and standard of care arises out of law, not
solely out of trade norms and best practices. Plaintiff’s expert is being proffered to
provide opinions regarding the as-built conditions and the cause of the same found
at the Townhomes at the time he performed testing based on his in-depth analysis,
information-gathering, visual and destructive inspection, and evaluation based on
ASTM E2128. See generally, Composite Deposition Transcript of Felix Martin
attached as Exhibit A.
Mr. Martin will be offering and has already offered opinions regarding the
presence of defects, how to properly design and install waterproofed systems, how
to sequence a job to ensure the installation of the systems are cohesive and
watertight, the presence and cause of damage at the Townhomes, and the
construction issues related to the same. Id.
As ROH is attempting to limit Mr. Martin’s testimony regarding the standard
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of care and obligations for a general contractor’s responsibility for supervision,
inspection, management, and approval over a project like the Townhomes, Plaintiff
notes that Mr. Martin’s testimony will be focusing on the defects, building code
violations, and damages at the Townhomes from the perspective of a forensic
investigator with decades of experience performing the same and similar types of
investigations.
Regarding ROH’s standard of care, a general contractor’s standard of care
arises out of common law, statute, and the contractual obligations asserted upon them
when a licensed qualifier for the company pulled and signed the permits on behalf
of ROH, certifying that:
no work or installation has commenced prior to the issuance of a permit
and that all work will be performed to meet all provisions of laws and
ordinances regulating construction in this jurisdiction;
and
I certify that all the foregoing information is accurate and that all work
will be done in compliance with all applicable laws regulating
construction and zoning.
See Exhibit A, p. 43 of Plaintiff’s Motion for Summary Judgment on
NonDelegable Duty [D.E. 941] – which Plaintiff incorporates all attached
exhibits, arguments, and record evidence herein by reference; see also §
713.135(7)(a), Fla. Stat. (requiring building permit applications to contain
such affirmation).
Plaintiff has not offered Mr. Martin for deposition nor will the
Association be offering him for trial to speak on the legal responsibilities held
by a general contractor. Notwithstanding, the Association opposes this Motion
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in Limine and asks the Court to deny ROH’s Motion because (1) a motion in
limine is an improper vehicle for the present arguments made; (2) the legal
arguments conferring duty to a general contractor have already been made and
will not be bolstered by deposition or trial testimony from Mr. Martin; and (3)
Mr. Martin is not providing legal argument regarding ROH’s duty to
supervise, coordinate, inspect and approve under Florida statute. Furthermore,
this Motion is premature and vague regarding the kind of testimony that may
be elicited at trial. For the foregoing reasons, Plaintiff respectfully request that
ROH’s Motion is denied.
II. MEMORANDUM OF LAW
A. Standard.
A motion in limine is a pre-trial motion designed to limit and or exclude
evidence and witnesses at trial. Fittipaldi v. Canstroneues, 905 So. 2d 182, 187 (Fla.
3d DCA 2005). Further, motions in limine are intended to create efficiency at trial
by streamlining issues and evidence, eliminating prejudice to a party, and preventing
confusion of the jury. Id. Motions are decided by the judge outside the presence of
the jury. Id. Trial judges have discretion in deciding whether certain evidence or
witnesses should be limited or excluded at trial; however, this power is restricted to
what is allowed under the Florida Rules of Evidence. Id. Properly utilized, motions
in limine can create efficiency and fairness at trial. Devoe v. W. Auto Supply Co.,
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537 So. 2d 188, 189 (Fla. 2d DCA 1989). But far more often, overly broad,
“boilerplate” motions are filed indiscriminately. Boyles v. A&G Concrete Pools,
Inc., 149 So. 3d 39, 43-44 (Fla. 4th DCA 2014). Such unnecessary motions are
detrimental to efficiency and often ask judges to rule in a vacuum without the
requisite information:
“Trial judges do not have to consider such motions well in advance of
trial. Many times they should not rule in advance. Evidentiary issues
often depend upon the context in which they are raised…”
Id. at 44; see also Swan v. Florida Farm Bureau Ins. Co., 404 So. 2d 802, 804
(Fla. 5th DCA 1981) (“The judge deserves the opportunity to rule on the evidence
in the light of what is happening, the evidence previously admitted, and the specific
grounds for the objection.”).
B. General Statement and BCP Rules.
As discussed in greater detail herein, the subjects addressed in the Motion are
not proper for motions in limine. The reprieve requested is not an evidentiary motion
in limine, it is effectively an improper motion for summary judgment as to the
Court’s interpretation of Royal Oak’s Non-Delegable Duty as a General Contractor.
Rice v. Kelly, 483 So. 2d 559, 560 (Fla. 4th DCA 1986).
As outlined in BCP 10.2, motions in limine should be reserved for specific
document, items, or statements that may cause unnecessary confusion to the jury at
trial. Fittipaldi v. Canstroneues, 905 So. 2d 182, 187 (Fla. 3d DCA 2005). Motions
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in limine are explicitly not an additional opportunity for a party to have the Court
hear a dispositive issue - such as requests for rulings on specific legal determinations
- which are better suited for a summary judgment motion or motion for judgment as
a matter of law. BCP 10.2; Rice v. Kelly, 483 So. 2d 559, 560 (Fla. 4th DCA 1986)
(“we condemned the use of motions in limine to summarily dismiss a portion of a
claim.”); see also Dailey v. Multicon Dev., Inc., 417 So. 2d 1106, 1107 (Fla. 4th
DCA 1982)1.
Further, there is no history to suggest that any counsel involved in the present
case will disregard settled law or practice. Conversely, putting such topics into court
orders as “bright lines” puts this Honorable Court in the difficult position of having
to police many in limine rulings, inviting more objections and adding unnecessary
complications to the trying of this already complex case.
Most importantly, this Court has a specific Business Court Procedure
regarding motions in limine. This Court’s Business Court Procedure 10.2 states:
10.2 - Motions in Limine. Motions in limine may be filed for the
purpose of seeking an advance ruling on the admissibility of specific
evidence at trial. The court typically does not consider motions in
limine for bench trials. Each motion in limine must attach, or specify
in detail, the document, item or statement at issue. The court may
strike as superfluous any motion in limine requesting a broad order that
a rule of evidence, procedure or professional conduct should be
followed at trial. Motions in limine shall not be used as a procedural
“Appellee, by way of its motion in limine, attempted to summarily dismiss a portion of appellant's case. The trial
1
court was asked to rule that as a matter of law appellee was not liable to appellant for damages to the wall. Appellee's
action is comparable to a motion for summary judgment but without the notice provisions and other requirements of
Florida Rule of Civil Procedure 1.510.”
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vehicle to circumvent the passing of the deadline to file dispositive
motions.
BCP 10.2 (emphasis added).
Accordingly, Plaintiff requests that this Honorable Court deny ROH’s
Motion, in part, to reserve ruling if, during the course of trial, the evidence discussed
in the Motion becomes relevant or otherwise admissible pursuant to the applicable
rules of evidence. Further the Plaintiff respectfully requests this Court discard any
dispositive argument improperly cloaked as an evidentiary issue.
C. Florida law imposes a non-delegable duty on ROH as the general
contractor for the project to construct the Community in
compliance with the FBC.
Florida law has long imposed a nondelegable duty on general contractors
performing work in the state. Mills v. Krauss, 114 So. 2d 817, 819 (Fla. 2d DCA
1959) (holding a contractor’s duty to use due care “is a nondelegable duty which
may not be committed to an independent contractor”). Generally, “a nondelegable
duty may be imposed by statute, by contract, or by common law.” Dixon v. Whitfield,
654 So. 2d 1230, 1232 (Fla. 1st DCA 1995). Such duties arise where a
“responsibility is so important to the community that [an] employer should not be
allowed to transfer it to a third party.” Id. at 1232. “Holding a particular undertaking
to be nondelegable means that responsibility, i.e., ultimate liability, for the proper
performance of that undertaking may not be delegated. The term nondelegable does
not preclude delegation of the actual performance of the [nondelegable] task.
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‘Nondelegable’ applies to the liabilities arising from the delegated duties if
breached.” Atlantic Coast Dev. Corp. v. Napoleon Steel Contractors, Inc., 385 So.
2d 676, 679 (Fla. 3d DCA 1980); see People’s Trust Ins. Co. v. Lillian Lamolli, 352
So. 3d 890, 895 (Fla. 4th DCA 2022) (“Thus, even if a subcontractor was used to
repair the insured's roof, [the general contractor] would remain ultimately
responsible for the subcontractor's work.”) (emphasis added).
“Under Florida law, a general contractor's duty of due care to a property owner
is a non-delegable duty subjecting [ROH] to liability for a subcontractor's
negligence. This is true even if the subcontractor is an independent contractor.” CC-
Aventura, Inc. v. Weitz Co., LLC, No. 06-21598-CIV, 2009 WL 2136527, at *2 (S.D.
Fla. July 13, 2009) (emphasis added); see Mastrandrea v. J. Mann, Inc., 128 So. 2d
146, 148 (Fla. 3d DCA 1961) (“a duty imposed by Statute or Ordinance, such as the
building Code involved in this case cannot be delegated to an independent
contractor.”); Bialkowicz v. Pan Am. Condo. No. 3, Inc., 215 So. 2d 767, 771 (Fla.
3d DCA 1968) (“The duty of care, with respect to the property of others, imposed
by a city building permit upon a general contractor cannot be delegated to an
independent sub-contractor.”); ABD Const. Co. v. Diaz, 712 So. 2d 1146, 1147–48
(Fla. 3d DCA 1998) (“as the qualifying agent, ABD has the responsibility to
supervise, direct, manage, and control construction activities on a job for which he
has obtained the building permit.”) (internal citations omitted).
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Fla. Stat 489-105(4) defines “Primary qualifying agent” (i.e., the license
holder who pulls a permit), to mean:
[A] person who possesses the requisite skill, knowledge, and
experience, and has the responsibility, to supervise, direct, manage,
and control the contracting activities of the business organization with
which he or she is connected; who has the responsibility to
supervise, direct, manage, and control construction activities on a
job for which he or she has obtained the building permit; and
whose technical and personal qualifications have been determined by
investigation and examination as provided in this part, as attested by
the department.
Fla. Stat. 480.105(4) (emphasis added).
The First District Court of Appeal further explained that “the qualifying
agent will still be responsible for the negligence of his surrogate regardless of the
care which may have been exercised in selecting the latter and regardless of whether
the latter is an independent contractor or employee of the qualifying agent's
firm.” Gatwood v. McGee, 475 So. 2d 720, 723 (Fla. 1st DCA 1985) (“We further
hold that the qualifying agent's duty of supervision is nondelegable.”) (emphasis
added) (overruled on other grounds).
In Rangel v. Northstar Homebuilders, Inc., the court summarized a general
contractor’s duty as follows:
The qualifying contractor, which executes the building permit
application, is not discharged from the above-described non-
delegable duty to comply with its terms and conditions by hiring an
independent contractor to perform work on the project. See e.g.
Prats, 502 So. 2d 969; Mastrandrea, 128 So. 2d 146; Bialkowicz, 215
10
So. 2d 767; Lewis, 498 So. 2d 573. See also Mills v. Krauss, 114 So.
2d 817 (Fla. 2d DCA 1959).
Because the non-delegable duty arises by virtue of the qualifying
contractor's execution of the application for permit and the resulting
issuance of the permit in reliance thereon, the non-delegable duty to
comply with the terms of the permit application does not depend upon
whether the qualifying contractor is the entity which also hired or
contracted with the contractors and sub-contractors performing work
on the project. E.g. Bialkowicz, 215 So. 2d 767
Rangel v. Northstar Homebuilders, Inc., 2018 WL 7019103, at *1-2 (Fla. 11th Cir.
Ct. 2018) (emphasis added).
Further, in several recent actions across the state, trial courts (and arbitration
panelists) have held that the general contractor for a construction project (like ROH),
had a non-delegable duty comply with the FBC. In holding this, these courts have
repeatedly granted a homeowner or condominium association’s motion for summary
judgment on the same. These courts include the Fourth Circuit Court in and for Clay
County; the Fourth Circuit Court in and for Duval County, the Ninth Circuit Court
in and for Orange County; the Fifteenth Circuit Court in and for Palm Beach County;
and the Eighteenth Circuit Court in and for Seminole County. A panel of arbitrators
from the American Arbitration Association also came to the same findings based on
similar facts.
Most recently, and importantly, the Fourth District Court of Appeal held:
By law, a general contractor must subcontract roofing repairs where it
does not have a license for such trade, but the general contractor
remains responsible for any roofing construction or alteration.
Thus, even if a subcontractor was used to repair the insured's roof, RRT
would remain ultimately responsible for the subcontractor's work.
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People’s Trust Ins. Co. v. Lillian Lamolli, 352 So. 3d 890, 895 (Fla. 4th DCA 2022)
(emphases added).
The Fourth DCA reiterates a reading of indisputable Florida law providing
that a general contractor is ultimately responsible for the work of its subcontractors
on a project – even if the work performed was roofing work performed by a
subcontractor with a separate roofer’s license. Lamolli’s set of facts is most similar
to those at present as ROH is a general contractor who pulled permits for the work
performed at the Community and contracted with subtrades to perform the
construction work. Id.
As the licensed contractor that pulled the permits for the Community, ROH is
legally responsible for the failure of any entity or individual on the Community,
including a subcontractor, to comply with the terms of the permit application. Mr.
Franks, one of ROH’s equity partners, and the license holder that pulled permits for
the construction of the Community, testified that a qualifier certifies, in signing a
permit application, that they will ensure compliance with the laws and ordinances
regulating construction in the jurisdiction, including, controlling the work of its
subcontractors. Accordingly, pursuant to Florida law, the ROH had non-delegable
duty to construct the Community in compliance with the FBC.
1. ROH Owed a Nondelegable Duty of Care in Constructing the
Community, Under Which Its Liability Cannot be Avoided
ROH cannot dodge its liability for the defective construction that has caused
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(and continues to cause) the Association’s damages. “Under Florida law, a general
contractor’s duty of care to a property owner is a non-delegable duty subjecting the
general contractor to liability for a subcontractor’s negligence. This is true even if
the subcontractor is an independent contractor.” See CC-Aventura, Inc., supra, at
*2 (emphases added). This nondelegable duty imposed on Florida’s general
contractors is meant to avoid the absurd result urged by ROH – that it can design,
construct, sell, and profit from the Community, yet, dually, avoid liability for
defective construction under its affirmative defenses.
ROH’s nondelegable duty of care and resulting liability for the negligence of
its subcontractors is grounded in Florida’s common and black-letter law, as well as
in contract. Lamolli, supra, at 895; see also Armiger v. Associated Outdoor Clubs,
Inc., 48 So. 3d 864, 875 (Fla. 2d DCA 2010) (where a nondelegable duty is owed,
“the potential responsibility of an independent contractor is not relevant to the
analysis of the [duty holder’s] liability”).
a) ROH’s Nondelegable Duty Arises Under Florida Common Law
Florida jurisprudence has imposed a nondelegable duty of care on general
contractors like ROH, which undertake the improvement and/or repair of property
for homebuyers in the state for decades. Mills, supra, at 820. Indeed, Florida courts
have unambiguously held “a general contractor’s duty of care to a property owner is
a non-delegable duty subjecting the general contractor to liability for a
13
subcontractor’s negligence” and that “[t]his is true even if the subcontractor is an
independent contractor.” CC-Aventura, Inc., supra, at *2 (emphases added); see
also Lamolli, supra, at 895 (holding a general contractor ultimately liable for the
work performed by its separately licensed roofing subcontractor).
Florida common law confirms this nondelegable duty is derived from, among
other things, applicable building permits obtained by the general contractor, as well
as the longstanding doctrine of respondeat superior. Bialkowicz, supra, at 771; see
also Post Tensioned Engineering Corp. v. Fairways Plaza Assocs., 429 So. 3d 1212,
1214 (Fla. 3d DCA 1983) (“Under the doctrine of respondeat superior, [a general
contractor] is responsible for the negligence of its subcontractors.”). ROH employed
the subcontractors it now attempts to solely (or, at least, partially) blame for the
defective construction and violations of the FBC causing the Association’s damages.
As such, Florida common law, statutes, and contracts (i.e., the Permit Applications
and Building Permits) all give rise to ROH’s nondelegable duty to supervise the
Subcontractors’ work and ensure all work at the Community was performed in
accordance with the Florida Building Code and other applicable regulations. As a
matter of law, this nondelegable duty precludes apportionment of ROH’s liability to
the Association and summary judgment on the Defenses is appropriate. The Motion
should be granted.
14
i. ROH Applied for and Obtained the Building Permits for
Construction of the Community
It is well-settled that, in Florida, “[t]he duty of care, with respect to the
property of others, imposed by a city building permit upon a general contractor
cannot be delegated to an independent sub-contractor.” Bialkowicz, supra, at 771
(emphases added). ROH applied for and obtained the building permits to construct
the Community. Plaintiff proffers example permit applications for 2956 Tanzanite
Terrace and 2934 Tanzanite Terrace discussed below.2
On or about June 27, 2016, and February 25, 2014, ROH, along with its
employee/qualifier, Mr. Franks, applied for the building permits to construct the
townhomes at 2956 Tanzanite Terrace and 2934 Tanzanite Terrace. Id. at 1 and 43.
To do so, ROH submitted its applications and Mr. Franks signed and certified each
permit on behalf of ROH. Id. Each application contains certifications, sworn to by
ROH, affirming that “all work will be performed to meet all provisions of laws
regulating construction in this jurisdiction,” and that “the granting of a permit does
not presume to give authority to violate the provisions of any other applicable state
or local codes and/or ordinances”:
2
While Plaintiff uses two applications as examples, the material facts for each other building permit application
submitted for the construction of the Community remain the same. See e.g. Exs. A, B, D, and F to [D.E.941j.
15
********** NOTICE ****** *
lJN0CRSTAN0 THAT SEPARATE PERMl’&APPUCATIONS MAv BE REQUIRED FOR ELFCTRCA. PLUMBING. MECHANICALS tie J**1 G *r
o>x»boON PRCMOED THE EXTENSION lS PEQUESTED IN SITING
1
WARNING TO OWNER: YOUR FAIL!
TWICE Ft» THE IMPSOVEMEHTS T c
UBiQEHOA ATTORNEY BEFORE I '
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districts
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The foregoing inatrument was acknowledged before me Mobile Home Par*
PARK MANAGERS_
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Who te personally known *< or produced 10 _ lh;p
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MARIN E KRAJANCWSKI
MY COMMISSION EE1S14M
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See Id. at 1 (emphasis added); See also Id. at 43 (emphasis added):
YOUR FAILURE TO RECORD A "NOTICE OF COMMENCEMENT" MAY RESULT IN YOUR PAYING
TWICE FOR THE IMPROVEMENTS TO YOUR PROPERTY. A NOTICE OF COMMENCEMENT MUST
I
BE RECORDED AND POSTED OF THE JOB SITE BEFORE FIRST INSPECTION. IF YOU INTEND -
TO OBTAIN FINANCING, CONSULT WITH YOUR LENDER OR ATTORNEY BEFORE RECORDING
YOUR “NOTICE OF COMMENCEMENT” (FS 713.135)
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Dismissed with Prejudice by by Plaintiff
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Oak Homes, LLC, 12/12/2023
Dismissed with Prejudice by
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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@hamiltonmilleiiaw.com cebanks@gspalaw.com
ktsiring@hamiltonmillerlaw.com
mprieto@hamiltonmilleiiaw.com
vbain@hamiltonmilleiiaw.com Counsel for Third-Party Defendant,
Heiberg Enterprises, LLC
Counsel for Defendan t/Cross-
Defendant, TGK Stucco, Inc.
VICKI LAMBERT ANDREW T. MARSHALL
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Orlando, FL 32801 Drnrlantnn
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25
jpestonit@insurancedefense.ne4 nancy@hamiltonpricelaw.com
kelsey@hamiltonpricelaw.com
Counsel for Third-Party Defendant, atmservice@hamiltonpricelaw.com
( -asey-Hawkins- Glass—Ine-
Gotmsetyfor Third-Party Defendant
PHILLIP S. HOWELL T&M Construction of Sanford, Inc.
BRENDEN C. COLLINS
Galloway, Johnson, Tompkins, Burr & Dism-issed-wif-h- Prejudice 4ry -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 WLLL4AMWLAAOODS
tampaservice@gallowaylawfirm.com JOSEPH M. CLINE
phowell@gallowaylawfirm.com Woods Law Group
bcollinsl@gallowaylawfirm.eom 100 S. Missouri Avenue, Suite 201
G4eorwateivT444756
('-ounse-l for- Th ird-Party Defendant (727) 799-1229, Ext. 4072
Casey-Hawkins Glasstyne- wwoods@ will woods 1aw. com
j0sephc@willweodslaw.eom
D/smissed-with-IGejudice by Third- mar4at@willwe0dskrw--eem
Party-Idaintiff^ sharonmg@woodslawgroupfl.-eom
Puddm^ddrodHetSYdnerd-H-^ ptea4mgs@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
AtyTArree-InstallaiHm ( orp. Dismissed
with Prejudice-by- ■ T h i Party
r d -
Pltcntyf WetChermaskr OicldtHg
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.
26
(904) 346-5422 505 Maitland Avenue, Suite 1000
floridacdlegalmail@libertymutual.com Altamonte Springs, FL 32701
joseph.zollner@libeilymutual.com (407) 425-0234
ccopeilino@wfmblaw.com
Counsel for Third-Party Defendant, cbraungail@wfmblaw.com
Lios Concrete Corp mmoorhead@wfmblaw.com
jgarcia@wfmblaw.com
Counsel for Third-Party Defendant,
Well Hung Windows d 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
mzipper@fednat.com mle@moodygraf.com
iperera@moodygraf.-eem
Counsel for Third-Party Defendant,
Atlantic Concrete Systems, Inc. Counsel for Premier Plastering of
('entral Florida, Inc. Withdrew for
Premier Plastering only 3.4.2022 A
Defendant/Cross-Defendant, Wolf’s
Irrigation d Landscaping, Inc.
Defendant,
Wolfs Irrigation d Landscaping, Ine.
Dismissed with Prejudice by Plaintiff
Royal Oak Homes, LLC ONLY
8/22/2023
Defendant// 'rosselaim Defendant,
Wolf’s Irrigation de Landscaping, Ine.
Dismissed with Prejudice by Plaintiff,
Emerald Lake Homeowners
Association, Inc. 8/24/2023
JERRILYNN HADLEY
TODD M. LADAUCEUR WAYNE M. ALDER
27
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@gallowavlawfirm.com wmalder@bellsouthnet.com
Counsel for Third-Party Defendant Counsel for Third-Party Defendant,
Hobhit Windows, LLC E.R.O. Construction, Inc. and Wed
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 Tk-WATTS^JR.
JACKELINE RODRIGUEZ ANDRE-W S. Y AIKMAN
Hamilton, Miller & Birthisel, LLP Wicker Smith O'hara Mccoy & Ford,
150 S.E. 2nd Avenue, Suite 1200 PrAr
Miami, FL 33131 49044A4raege-A¥e7@kH^^
(305) 379-3686 Orlando, FL 32801
squinn@hamiltonmilleiiaw.com (407) 843 3939
irodriguez@hamiltonmiller.com oiicilpleadings@wickersmith.Gem
Counsel for Defendant/ Cross¬ Counsel for Defendant, Expert
Defendant, Premier Plastering of Painting & Pressure Washing, Inc.
Central Florida, Inc.
Dismissed-with- PrejudieeFy Third-
PaHy-PkHntiff l/l 6/2024
GREGORY E. BLACKWELL
KIERAN F. O’CONNOR
ELIZABETH DROZ-STOLINAS
O’Connor & Stolinas Law Group,
PLUG
800 North Magnolia Avenue, Ste 1350
Orlando, FL 32803
(407) 843 '2100
28
tclark@oconlaw.com
edroz-stolinas@oconlaw.com
rps@oconlaw.com
Counsel for Third Party Defendant,
Dxperi-42aini4H$y&-Pres^^
IIr 1
Dismissed with Prejudice by’
Third-
Party Plaintiff, 1/16/2024
29
In The Matter Of:
Villas at Emerald Lake Homeowners Association, Inc. v.
Royal Oaks Homes, LLC., et al
Felix Martin
Vol. I
June 15, 2021
Legal Realtime Reporting
622 E. Washington Street
Suite 200
Orlando, Florida 32801
Original File 6-15-21.txt
Min-U-Script® with Word Index
Villas at Emerald Lake Homeowners Association, Inc. v. Felix Martin - Vol. I
Royal Oaks Homes, LLC., et al June 15, 2021
Page 1 Page 3
1 IN THE CIRCUIT COURT, NINTH 1 APPEARANCES CONTINUED:
JUDICIAL CIRCUIT, IN AND FOR
2 OSCEOLA COUNTY, FLORIDA 2 PETER J. KAPSALES, ESQUIRE
OF: MILNE LAW GROUP, P.A.
3 CASE NO.: 2020-CA-002942-ON 3 301 East Pine Street
Suite 525
4 VILLAS AT EMERALD LAKE 4 Orlando, Florida 32801
HOMEOWNERS ASSOCIATION, APPEARING ON BEHALF OF WEATHERMASTER BUILDING
5 INC., a Florida not for 5 PRODUCTS, INC.
profit corporation,
6 6 ANDREW E. HOLWAY, ESQUIRE
Plaintiff, OF: HILL, WARD, HENDERSON
7 v. 7 101 East Kennedy Boulevard
Suite 3700
8 ROYAL OAK HOMES, LLC, a 8 Tampa, Florida 33602
Florida limited liability APPEARING ON BEHALF OF WEINTRAUB INSPECTIONS &
9 company, et al., 9 FORENSICS, INC. n/k/a WEINTRAUB ENGINEERING AND
INSPECTIONS, INC.
10 Defendants. 10
______________________________/ D. BRYAN HILL, ESQUIRE
11 11 OF: MILBER, MAKRIS, PLOUSADIS & SEIDEN, LLP
AND RELATED CROSS-ACTIONS. 1900 Northwest Corporate Boulevard
12 _______________________________/ 12 East Tower
Suite 440
13 13 Boca Raton, Florida 33431
APPEARING ON BEHALF OF BROWN + BROWN COMPANY
14 VOLUME I 14 ARCHITECTURE, INC.
(PAGES 1 THROUGH 206)
15 15 ERIC J. NETCHER, ESQUIRE
OF: WALKER, REVELS, GRENINGER & NETCHER, PLLC
16 ZOOM DEPOSITION OF: FELIX MARTIN 16 189 South Orange Avenue
Suite 1830
17 DATE TAKEN: June 15, 2021 17 Orlando, Florida 32801
APPEARING ON BEHALF OF ALL GLASS INSTALLATION
18 TIME: 9:00 a.m. to 5:00 p.m. 18 CORP.
19 PLACE: ALL PARTIES ATTENDED VIA ZOOM 19 R. SCOTT ROSS, ESQUIRE
OF: GROELLE & SALMON, P.A.
20 REPORTED BY: TARA K. SLOCUM, RPR, CRR, CSR 20 1715 North Westshore Boulevard
State of California and Notary Suite 230
21 Public State of Florida 21 Tampa, Florida 33607
APPEARING ON BEHALF OF HELBERG ENTERPRISES, LLC
22 22
ANDREW MARSHALL, ESQUIRE
23 23 OF: HAMILTON, PRICE & MARSHALL, P.A.
2400 Manatee Avenue West
24 24 Bradenton, Florida 34205-4934
APPEARING ON BEHALF OF T&M CONSTRUCTION
25 25
Page 2 Page 4
1 A P P E A R A N C E S: 1 APPEARANCES CONTINUED:
2 NICHOLAS B. VARGO, ESQUIRE 2 NATALIE FISCHER, ESQUIRE
ALLANA SMITH, ESQUIRE OF: CONROY SIMBERG
3 OF: BALL JANIK, LLP 3 Two South Orange Avenue
201 East Pine Street Suite 300
4 Suite 600 4 Orlando, Florida 32801
Orlando, Florida 32801 APPEARING ON BEHALF OF ADVANCED WRAPPING AND
5 APPEARING ON BEHALF OF THE PLAINTIFF 5 CONCRETE SOLUTIONS OF CENTRAL FLORIDA, INC.
6 MAI M. LE, ESQUIRE 6 RICHARD LEE RUSSO, ESQUIRE
OF: MOODY & GRAF, P.A. OF: WRIGHT, FULFORD, MOOREHEAD & BROWN
7 1101 North Lake Destiny Road 7 505 Maitland Avenue
Suite 200 Suite 1000
8 Maitland, Florida 32751 8 Altamonte Springs, Florida 32701-6306
APPEARING ON BEHALF OF PREMIER PLASTERING OF APPEARING ON BEHALF OF WELL HUNG WINDOWS AND
9 CENTRAL FLORIDA, INC. 9 DOORS, LLC
10 BETH ANN TOBEY, ESQUIRE 10
OF: LAW OFFICES OF THAMIR A.R. KADDOURI, JR., P.A.
11 3220 West Cypress Street 11
Tampa, Florida 33607
12 APPEARING ON BEHALF OF IMPERIAL BUILDING 12
CORPORATION
13 13
MICHAEL RUEL, ESQUIRE
14 OF: LUKS, SANTANIELLO, PETRILLO & COHEN 14
201 South Orange Avenue
15 Suit
Preview
Filing # 193071524 E-Filed 02/29/2024 11:39:32 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. PLAINTIFF’S OPPOSITION TO ROYAL OAK HOMES, LLC’S MOTION IN LIMINE TO EXCLUDE PLAINTIFF EXPERT TESTIMONY AS TO THE DUTY OF CARE OWED BY A GENERAL CONTRACTOR IN FLORIDA Plaintiff, Villas at Emerald Lake Homeowners Association, Inc. (the “Association” or “Plaintiff”), by and through its undersigned attorneys, files this Response and Memorandum of Law in Opposition (“Opposition”) to Defendant Royal Oak Homes, LLC’s (“ROH”) Motion in Limine to Exclude Plaintiff Expert Testimony as to the Duty of Care Owed by a General Contractor in Florida [D.E. 959] (“Motion”), and states as follows: I. INTRODUCTION AND SUMMARY OF ARGUMENT The instant case arises out of construction and design defects that exist at the 10 buildings and 76 units developed and constructed by ROH and its subcontractors 1 the Villas at Emerald Lake townhome community located in Osceola County, Florida (the “Townhomes” or “Community”). The defective development, design, and construction work performed, designed, coordinated, and sequenced by ROH, its designers, private inspectors, and subcontractors at the Community failed to comply with the applicable Florida Building Codes, contract documents, project plans, specifications, submittals, and shop drawings. As a result of the defective construction, the Association began to experience widespread water intrusion throughout the Townhomes and common areas of the Community, causing widespread damage and the need for significant repairs. The Association filed its operative Second Amended Complaint against ROH, and others, alleging claims of Negligence and Violation of the Building Code pursuant to § 553.84, Florida Statutes. See Complaint [D.E. 2]; see also Second Amended Complaint (“SAC”) [D.E. 506]. Pursuant to this Court’s case management order (“CMO”) deadlines ROH filed its Omnibus Motion in Limine to Exclude Plaintiff Expert Testimony as to the Duty of Care Owed by A General Contractor in Florida. In its Motion, ROH seeks to exclude trial testimony by Plaintiff’s expert “regarding the duty of care owed by a general contractor like Royal Oak in Florida because Plaintiff’s expert, Felix Martin, is an engineer, not a licensed general contractor, and he has no experience as a general contractor in the state of Florida.” 2 Motion, p. 3. Here, ROH is attempting to combat the opinions and analysis of Plaintiff’s liability expert – Felix Martin, P.E. of Marcon Forensics, LLC (“Marcon”) – by asking the Court to limit any expert testimony regarding the duty of a general contractor as “Mr. Martin is an engineer, not a licensed general contractor.” Motion, p. 5. Plaintiff agrees and disagrees with ROH. ROH is correct in that Plaintiff’s only liability expert is a professional engineer and has never held a general contractor’s license. However, ROH’s Motion should be denied because ROH’s duty and standard of care arises out of law, not solely out of trade norms and best practices. Plaintiff’s expert is being proffered to provide opinions regarding the as-built conditions and the cause of the same found at the Townhomes at the time he performed testing based on his in-depth analysis, information-gathering, visual and destructive inspection, and evaluation based on ASTM E2128. See generally, Composite Deposition Transcript of Felix Martin attached as Exhibit A. Mr. Martin will be offering and has already offered opinions regarding the presence of defects, how to properly design and install waterproofed systems, how to sequence a job to ensure the installation of the systems are cohesive and watertight, the presence and cause of damage at the Townhomes, and the construction issues related to the same. Id. As ROH is attempting to limit Mr. Martin’s testimony regarding the standard 3 of care and obligations for a general contractor’s responsibility for supervision, inspection, management, and approval over a project like the Townhomes, Plaintiff notes that Mr. Martin’s testimony will be focusing on the defects, building code violations, and damages at the Townhomes from the perspective of a forensic investigator with decades of experience performing the same and similar types of investigations. Regarding ROH’s standard of care, a general contractor’s standard of care arises out of common law, statute, and the contractual obligations asserted upon them when a licensed qualifier for the company pulled and signed the permits on behalf of ROH, certifying that: no work or installation has commenced prior to the issuance of a permit and that all work will be performed to meet all provisions of laws and ordinances regulating construction in this jurisdiction; and I certify that all the foregoing information is accurate and that all work will be done in compliance with all applicable laws regulating construction and zoning. See Exhibit A, p. 43 of Plaintiff’s Motion for Summary Judgment on NonDelegable Duty [D.E. 941] – which Plaintiff incorporates all attached exhibits, arguments, and record evidence herein by reference; see also § 713.135(7)(a), Fla. Stat. (requiring building permit applications to contain such affirmation). Plaintiff has not offered Mr. Martin for deposition nor will the Association be offering him for trial to speak on the legal responsibilities held by a general contractor. Notwithstanding, the Association opposes this Motion 4 in Limine and asks the Court to deny ROH’s Motion because (1) a motion in limine is an improper vehicle for the present arguments made; (2) the legal arguments conferring duty to a general contractor have already been made and will not be bolstered by deposition or trial testimony from Mr. Martin; and (3) Mr. Martin is not providing legal argument regarding ROH’s duty to supervise, coordinate, inspect and approve under Florida statute. Furthermore, this Motion is premature and vague regarding the kind of testimony that may be elicited at trial. For the foregoing reasons, Plaintiff respectfully request that ROH’s Motion is denied. II. MEMORANDUM OF LAW A. Standard. A motion in limine is a pre-trial motion designed to limit and or exclude evidence and witnesses at trial. Fittipaldi v. Canstroneues, 905 So. 2d 182, 187 (Fla. 3d DCA 2005). Further, motions in limine are intended to create efficiency at trial by streamlining issues and evidence, eliminating prejudice to a party, and preventing confusion of the jury. Id. Motions are decided by the judge outside the presence of the jury. Id. Trial judges have discretion in deciding whether certain evidence or witnesses should be limited or excluded at trial; however, this power is restricted to what is allowed under the Florida Rules of Evidence. Id. Properly utilized, motions in limine can create efficiency and fairness at trial. Devoe v. W. Auto Supply Co., 5 537 So. 2d 188, 189 (Fla. 2d DCA 1989). But far more often, overly broad, “boilerplate” motions are filed indiscriminately. Boyles v. A&G Concrete Pools, Inc., 149 So. 3d 39, 43-44 (Fla. 4th DCA 2014). Such unnecessary motions are detrimental to efficiency and often ask judges to rule in a vacuum without the requisite information: “Trial judges do not have to consider such motions well in advance of trial. Many times they should not rule in advance. Evidentiary issues often depend upon the context in which they are raised…” Id. at 44; see also Swan v. Florida Farm Bureau Ins. Co., 404 So. 2d 802, 804 (Fla. 5th DCA 1981) (“The judge deserves the opportunity to rule on the evidence in the light of what is happening, the evidence previously admitted, and the specific grounds for the objection.”). B. General Statement and BCP Rules. As discussed in greater detail herein, the subjects addressed in the Motion are not proper for motions in limine. The reprieve requested is not an evidentiary motion in limine, it is effectively an improper motion for summary judgment as to the Court’s interpretation of Royal Oak’s Non-Delegable Duty as a General Contractor. Rice v. Kelly, 483 So. 2d 559, 560 (Fla. 4th DCA 1986). As outlined in BCP 10.2, motions in limine should be reserved for specific document, items, or statements that may cause unnecessary confusion to the jury at trial. Fittipaldi v. Canstroneues, 905 So. 2d 182, 187 (Fla. 3d DCA 2005). Motions 6 in limine are explicitly not an additional opportunity for a party to have the Court hear a dispositive issue - such as requests for rulings on specific legal determinations - which are better suited for a summary judgment motion or motion for judgment as a matter of law. BCP 10.2; Rice v. Kelly, 483 So. 2d 559, 560 (Fla. 4th DCA 1986) (“we condemned the use of motions in limine to summarily dismiss a portion of a claim.”); see also Dailey v. Multicon Dev., Inc., 417 So. 2d 1106, 1107 (Fla. 4th DCA 1982)1. Further, there is no history to suggest that any counsel involved in the present case will disregard settled law or practice. Conversely, putting such topics into court orders as “bright lines” puts this Honorable Court in the difficult position of having to police many in limine rulings, inviting more objections and adding unnecessary complications to the trying of this already complex case. Most importantly, this Court has a specific Business Court Procedure regarding motions in limine. This Court’s Business Court Procedure 10.2 states: 10.2 - Motions in Limine. Motions in limine may be filed for the purpose of seeking an advance ruling on the admissibility of specific evidence at trial. The court typically does not consider motions in limine for bench trials. Each motion in limine must attach, or specify in detail, the document, item or statement at issue. The court may strike as superfluous any motion in limine requesting a broad order that a rule of evidence, procedure or professional conduct should be followed at trial. Motions in limine shall not be used as a procedural “Appellee, by way of its motion in limine, attempted to summarily dismiss a portion of appellant's case. The trial 1 court was asked to rule that as a matter of law appellee was not liable to appellant for damages to the wall. Appellee's action is comparable to a motion for summary judgment but without the notice provisions and other requirements of Florida Rule of Civil Procedure 1.510.” 7 vehicle to circumvent the passing of the deadline to file dispositive motions. BCP 10.2 (emphasis added). Accordingly, Plaintiff requests that this Honorable Court deny ROH’s Motion, in part, to reserve ruling if, during the course of trial, the evidence discussed in the Motion becomes relevant or otherwise admissible pursuant to the applicable rules of evidence. Further the Plaintiff respectfully requests this Court discard any dispositive argument improperly cloaked as an evidentiary issue. C. Florida law imposes a non-delegable duty on ROH as the general contractor for the project to construct the Community in compliance with the FBC. Florida law has long imposed a nondelegable duty on general contractors performing work in the state. Mills v. Krauss, 114 So. 2d 817, 819 (Fla. 2d DCA 1959) (holding a contractor’s duty to use due care “is a nondelegable duty which may not be committed to an independent contractor”). Generally, “a nondelegable duty may be imposed by statute, by contract, or by common law.” Dixon v. Whitfield, 654 So. 2d 1230, 1232 (Fla. 1st DCA 1995). Such duties arise where a “responsibility is so important to the community that [an] employer should not be allowed to transfer it to a third party.” Id. at 1232. “Holding a particular undertaking to be nondelegable means that responsibility, i.e., ultimate liability, for the proper performance of that undertaking may not be delegated. The term nondelegable does not preclude delegation of the actual performance of the [nondelegable] task. 8 ‘Nondelegable’ applies to the liabilities arising from the delegated duties if breached.” Atlantic Coast Dev. Corp. v. Napoleon Steel Contractors, Inc., 385 So. 2d 676, 679 (Fla. 3d DCA 1980); see People’s Trust Ins. Co. v. Lillian Lamolli, 352 So. 3d 890, 895 (Fla. 4th DCA 2022) (“Thus, even if a subcontractor was used to repair the insured's roof, [the general contractor] would remain ultimately responsible for the subcontractor's work.”) (emphasis added). “Under Florida law, a general contractor's duty of due care to a property owner is a non-delegable duty subjecting [ROH] to liability for a subcontractor's negligence. This is true even if the subcontractor is an independent contractor.” CC- Aventura, Inc. v. Weitz Co., LLC, No. 06-21598-CIV, 2009 WL 2136527, at *2 (S.D. Fla. July 13, 2009) (emphasis added); see Mastrandrea v. J. Mann, Inc., 128 So. 2d 146, 148 (Fla. 3d DCA 1961) (“a duty imposed by Statute or Ordinance, such as the building Code involved in this case cannot be delegated to an independent contractor.”); Bialkowicz v. Pan Am. Condo. No. 3, Inc., 215 So. 2d 767, 771 (Fla. 3d DCA 1968) (“The duty of care, with respect to the property of others, imposed by a city building permit upon a general contractor cannot be delegated to an independent sub-contractor.”); ABD Const. Co. v. Diaz, 712 So. 2d 1146, 1147–48 (Fla. 3d DCA 1998) (“as the qualifying agent, ABD has the responsibility to supervise, direct, manage, and control construction activities on a job for which he has obtained the building permit.”) (internal citations omitted). 9 Fla. Stat 489-105(4) defines “Primary qualifying agent” (i.e., the license holder who pulls a permit), to mean: [A] person who possesses the requisite skill, knowledge, and experience, and has the responsibility, to supervise, direct, manage, and control the contracting activities of the business organization with which he or she is connected; who has the responsibility to supervise, direct, manage, and control construction activities on a job for which he or she has obtained the building permit; and whose technical and personal qualifications have been determined by investigation and examination as provided in this part, as attested by the department. Fla. Stat. 480.105(4) (emphasis added). The First District Court of Appeal further explained that “the qualifying agent will still be responsible for the negligence of his surrogate regardless of the care which may have been exercised in selecting the latter and regardless of whether the latter is an independent contractor or employee of the qualifying agent's firm.” Gatwood v. McGee, 475 So. 2d 720, 723 (Fla. 1st DCA 1985) (“We further hold that the qualifying agent's duty of supervision is nondelegable.”) (emphasis added) (overruled on other grounds). In Rangel v. Northstar Homebuilders, Inc., the court summarized a general contractor’s duty as follows: The qualifying contractor, which executes the building permit application, is not discharged from the above-described non- delegable duty to comply with its terms and conditions by hiring an independent contractor to perform work on the project. See e.g. Prats, 502 So. 2d 969; Mastrandrea, 128 So. 2d 146; Bialkowicz, 215 10 So. 2d 767; Lewis, 498 So. 2d 573. See also Mills v. Krauss, 114 So. 2d 817 (Fla. 2d DCA 1959). Because the non-delegable duty arises by virtue of the qualifying contractor's execution of the application for permit and the resulting issuance of the permit in reliance thereon, the non-delegable duty to comply with the terms of the permit application does not depend upon whether the qualifying contractor is the entity which also hired or contracted with the contractors and sub-contractors performing work on the project. E.g. Bialkowicz, 215 So. 2d 767 Rangel v. Northstar Homebuilders, Inc., 2018 WL 7019103, at *1-2 (Fla. 11th Cir. Ct. 2018) (emphasis added). Further, in several recent actions across the state, trial courts (and arbitration panelists) have held that the general contractor for a construction project (like ROH), had a non-delegable duty comply with the FBC. In holding this, these courts have repeatedly granted a homeowner or condominium association’s motion for summary judgment on the same. These courts include the Fourth Circuit Court in and for Clay County; the Fourth Circuit Court in and for Duval County, the Ninth Circuit Court in and for Orange County; the Fifteenth Circuit Court in and for Palm Beach County; and the Eighteenth Circuit Court in and for Seminole County. A panel of arbitrators from the American Arbitration Association also came to the same findings based on similar facts. Most recently, and importantly, the Fourth District Court of Appeal held: By law, a general contractor must subcontract roofing repairs where it does not have a license for such trade, but the general contractor remains responsible for any roofing construction or alteration. Thus, even if a subcontractor was used to repair the insured's roof, RRT would remain ultimately responsible for the subcontractor's work. 11 People’s Trust Ins. Co. v. Lillian Lamolli, 352 So. 3d 890, 895 (Fla. 4th DCA 2022) (emphases added). The Fourth DCA reiterates a reading of indisputable Florida law providing that a general contractor is ultimately responsible for the work of its subcontractors on a project – even if the work performed was roofing work performed by a subcontractor with a separate roofer’s license. Lamolli’s set of facts is most similar to those at present as ROH is a general contractor who pulled permits for the work performed at the Community and contracted with subtrades to perform the construction work. Id. As the licensed contractor that pulled the permits for the Community, ROH is legally responsible for the failure of any entity or individual on the Community, including a subcontractor, to comply with the terms of the permit application. Mr. Franks, one of ROH’s equity partners, and the license holder that pulled permits for the construction of the Community, testified that a qualifier certifies, in signing a permit application, that they will ensure compliance with the laws and ordinances regulating construction in the jurisdiction, including, controlling the work of its subcontractors. Accordingly, pursuant to Florida law, the ROH had non-delegable duty to construct the Community in compliance with the FBC. 1. ROH Owed a Nondelegable Duty of Care in Constructing the Community, Under Which Its Liability Cannot be Avoided ROH cannot dodge its liability for the defective construction that has caused 12 (and continues to cause) the Association’s damages. “Under Florida law, a general contractor’s duty of care to a property owner is a non-delegable duty subjecting the general contractor to liability for a subcontractor’s negligence. This is true even if the subcontractor is an independent contractor.” See CC-Aventura, Inc., supra, at *2 (emphases added). This nondelegable duty imposed on Florida’s general contractors is meant to avoid the absurd result urged by ROH – that it can design, construct, sell, and profit from the Community, yet, dually, avoid liability for defective construction under its affirmative defenses. ROH’s nondelegable duty of care and resulting liability for the negligence of its subcontractors is grounded in Florida’s common and black-letter law, as well as in contract. Lamolli, supra, at 895; see also Armiger v. Associated Outdoor Clubs, Inc., 48 So. 3d 864, 875 (Fla. 2d DCA 2010) (where a nondelegable duty is owed, “the potential responsibility of an independent contractor is not relevant to the analysis of the [duty holder’s] liability”). a) ROH’s Nondelegable Duty Arises Under Florida Common Law Florida jurisprudence has imposed a nondelegable duty of care on general contractors like ROH, which undertake the improvement and/or repair of property for homebuyers in the state for decades. Mills, supra, at 820. Indeed, Florida courts have unambiguously held “a general contractor’s duty of care to a property owner is a non-delegable duty subjecting the general contractor to liability for a 13 subcontractor’s negligence” and that “[t]his is true even if the subcontractor is an independent contractor.” CC-Aventura, Inc., supra, at *2 (emphases added); see also Lamolli, supra, at 895 (holding a general contractor ultimately liable for the work performed by its separately licensed roofing subcontractor). Florida common law confirms this nondelegable duty is derived from, among other things, applicable building permits obtained by the general contractor, as well as the longstanding doctrine of respondeat superior. Bialkowicz, supra, at 771; see also Post Tensioned Engineering Corp. v. Fairways Plaza Assocs., 429 So. 3d 1212, 1214 (Fla. 3d DCA 1983) (“Under the doctrine of respondeat superior, [a general contractor] is responsible for the negligence of its subcontractors.”). ROH employed the subcontractors it now attempts to solely (or, at least, partially) blame for the defective construction and violations of the FBC causing the Association’s damages. As such, Florida common law, statutes, and contracts (i.e., the Permit Applications and Building Permits) all give rise to ROH’s nondelegable duty to supervise the Subcontractors’ work and ensure all work at the Community was performed in accordance with the Florida Building Code and other applicable regulations. As a matter of law, this nondelegable duty precludes apportionment of ROH’s liability to the Association and summary judgment on the Defenses is appropriate. The Motion should be granted. 14 i. ROH Applied for and Obtained the Building Permits for Construction of the Community It is well-settled that, in Florida, “[t]he duty of care, with respect to the property of others, imposed by a city building permit upon a general contractor cannot be delegated to an independent sub-contractor.” Bialkowicz, supra, at 771 (emphases added). ROH applied for and obtained the building permits to construct the Community. Plaintiff proffers example permit applications for 2956 Tanzanite Terrace and 2934 Tanzanite Terrace discussed below.2 On or about June 27, 2016, and February 25, 2014, ROH, along with its employee/qualifier, Mr. Franks, applied for the building permits to construct the townhomes at 2956 Tanzanite Terrace and 2934 Tanzanite Terrace. Id. at 1 and 43. To do so, ROH submitted its applications and Mr. Franks signed and certified each permit on behalf of ROH. Id. Each application contains certifications, sworn to by ROH, affirming that “all work will be performed to meet all provisions of laws regulating construction in this jurisdiction,” and that “the granting of a permit does not presume to give authority to violate the provisions of any other applicable state or local codes and/or ordinances”: 2 While Plaintiff uses two applications as examples, the material facts for each other building permit application submitted for the construction of the Community remain the same. See e.g. Exs. A, B, D, and F to [D.E.941j. 15 ********** NOTICE ****** * lJN0CRSTAN0 THAT SEPARATE PERMl’&APPUCATIONS MAv BE REQUIRED FOR ELFCTRCA. PLUMBING. MECHANICALS tie J**1 G *r o>x»boON PRCMOED THE EXTENSION lS PEQUESTED IN SITING 1 WARNING TO OWNER: YOUR FAIL! TWICE Ft» THE IMPSOVEMEHTS T c UBiQEHOA ATTORNEY BEFORE I ' . I I districts TV^&^A>nTUa1 sor r 'J. .T ,#n-> i.'l GD^HIe State of Florida County of «»ew*r The foregoing inatrument was acknowledged before me Mobile Home Par* PARK MANAGERS_ 5CNAIURE Kit . 1 ■ Who te personally known *< or produced 10 _ lh;p Type of 10. ■ MARIN E KRAJANCWSKI MY COMMISSION EE1S14M t Notary Pu»>c signature i*on cz o See Id. at 1 (emphasis added); See also Id. at 43 (emphasis added): YOUR FAILURE TO RECORD A "NOTICE OF COMMENCEMENT" MAY RESULT IN YOUR PAYING TWICE FOR THE IMPROVEMENTS TO YOUR PROPERTY. A NOTICE OF COMMENCEMENT MUST I BE RECORDED AND POSTED OF THE JOB SITE BEFORE FIRST INSPECTION. IF YOU INTEND - TO OBTAIN FINANCING, CONSULT WITH YOUR LENDER OR ATTORNEY BEFORE RECORDING YOUR “NOTICE OF COMMENCEMENT” (FS 713.135) E OWNER'S AFHDAVH: I certify that all foregoing InhamMloei h accwate and that all wore wHi be dunv In cumptiance wkh all apfdiraH*Uw»<*. VVJIII Defem/anU^dvaneedDD^appmjyand K111V Ct V7 W d l(7/mi kmcdnwpl 1 1111T1 hprmokrm t>* mm U V t 11 tdK t ! □Will . onoroto V t/f/Cf ,^oJijfionv of ufu oUivtitUrtn ontrol Ut V Cr/rf l-i'lorioo u/ rtUr unf ddKV W1 V7113K1 (K^lllllUVI111CHV1 ! □mm Qplcnwmns’lci//cmi 1 hprmolrri s* . WITT Jno ihv. V xfttrtbvt for i^txrVrtiAtjrttr otiviQol JUr T^cfovixiovit/C'V * J^ofononnt Dr t^'CjVrttActrtt, Rrown Wvrt -1- f omnonx} xL/Drrtt/ttrty Architecture, Inc. Dismissed with Prejudice by by Plaintiff flint ifff irtryttr l^Uf UTttrtf rtt/C r UJaUtUlrrt 1TotUlrtlttf Doyiol fussedwitli^rcjudicc Oak Homes, LLC, 12/12/2023 Dismissed with Prejudice by t^v/VrtUurtlrx^ r USbCtutrrt / tUtrtitjJ, i\Dyut vytttt 11urnv.', 1 z/1 z/z t/z 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@hamiltonmilleiiaw.com cebanks@gspalaw.com ktsiring@hamiltonmillerlaw.com mprieto@hamiltonmilleiiaw.com vbain@hamiltonmilleiiaw.com Counsel for Third-Party Defendant, Heiberg Enterprises, LLC Counsel for Defendan t/Cross- Defendant, TGK Stucco, Inc. VICKI LAMBERT ANDREW T. MARSHALL AI.FC IVl/TLkJkJVFll /1CCV MASSON SARA-WAMABES ^nntnniplln rPptrilln nhpfl II Q rv> f t*i r» 0 PA nice oaiiiaiiieiiv, Iluks, etiniv ex fix v^viidi nullllllUIl 1 rO live, I r.A. 201 S. Orange Avenue, Suite iOO 2 J 00 Manatce-Avc-T-Wr Orlando, FL 32801 Drnrlantnn UI PI "J A ') H< clVl VlllUll, 1 !_/ J Z-VTZ7 1 (40^4440-94^0 (9444^4^-05^0 1UA.3U11 n InlfQnrl fi vv oom 1 pq H i n osi^x/J q. 1lUVV.VUlll pivauill^3(l€'13 aAtTfirpw/rnhomiltmmricpln\A7 com licit v w (ttZiiciiiiiiiviipi ivvictw .win fim9sinn67)1 ai 1 laaviixu^i 11s: Uirnncpclpfpnqp 115 11 diiWviviviioV.iivt net sdia^tznciiiiiiiviipi ivvuiw .win 25 jpestonit@insurancedefense.ne4 nancy@hamiltonpricelaw.com kelsey@hamiltonpricelaw.com Counsel for Third-Party Defendant, atmservice@hamiltonpricelaw.com ( -asey-Hawkins- Glass—Ine- Gotmsetyfor Third-Party Defendant PHILLIP S. HOWELL T&M Construction of Sanford, Inc. BRENDEN C. COLLINS Galloway, Johnson, Tompkins, Burr & Dism-issed-wif-h- Prejudice 4ry -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 WLLL4AMWLAAOODS tampaservice@gallowaylawfirm.com JOSEPH M. CLINE phowell@gallowaylawfirm.com Woods Law Group bcollinsl@gallowaylawfirm.eom 100 S. Missouri Avenue, Suite 201 G4eorwateivT444756 ('-ounse-l for- Th ird-Party Defendant (727) 799-1229, Ext. 4072 Casey-Hawkins Glasstyne- wwoods@ will woods 1aw. com j0sephc@willweodslaw.eom D/smissed-with-IGejudice by Third- mar4at@willwe0dskrw--eem Party-Idaintiff^ sharonmg@woodslawgroupfl.-eom Puddm^ddrodHetSYdnerd-H-^ ptea4mgs@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 AtyTArree-InstallaiHm ( orp. Dismissed with Prejudice-by- ■ T h i Party r d - Pltcntyf WetChermaskr OicldtHg 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. 26 (904) 346-5422 505 Maitland Avenue, Suite 1000 floridacdlegalmail@libertymutual.com Altamonte Springs, FL 32701 joseph.zollner@libeilymutual.com (407) 425-0234 ccopeilino@wfmblaw.com Counsel for Third-Party Defendant, cbraungail@wfmblaw.com Lios Concrete Corp mmoorhead@wfmblaw.com jgarcia@wfmblaw.com Counsel for Third-Party Defendant, Well Hung Windows d 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 mzipper@fednat.com mle@moodygraf.com iperera@moodygraf.-eem Counsel for Third-Party Defendant, Atlantic Concrete Systems, Inc. Counsel for Premier Plastering of ('entral Florida, Inc. Withdrew for Premier Plastering only 3.4.2022 A Defendant/Cross-Defendant, Wolf’s Irrigation d Landscaping, Inc. Defendant, Wolfs Irrigation d Landscaping, Ine. Dismissed with Prejudice by Plaintiff Royal Oak Homes, LLC ONLY 8/22/2023 Defendant// 'rosselaim Defendant, Wolf’s Irrigation de Landscaping, Ine. Dismissed with Prejudice by Plaintiff, Emerald Lake Homeowners Association, Inc. 8/24/2023 JERRILYNN HADLEY TODD M. LADAUCEUR WAYNE M. ALDER 27 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@gallowavlawfirm.com wmalder@bellsouthnet.com Counsel for Third-Party Defendant Counsel for Third-Party Defendant, Hobhit Windows, LLC E.R.O. Construction, Inc. and Wed 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 Tk-WATTS^JR. JACKELINE RODRIGUEZ ANDRE-W S. Y AIKMAN Hamilton, Miller & Birthisel, LLP Wicker Smith O'hara Mccoy & Ford, 150 S.E. 2nd Avenue, Suite 1200 PrAr Miami, FL 33131 49044A4raege-A¥e7@kH^^ (305) 379-3686 Orlando, FL 32801 squinn@hamiltonmilleiiaw.com (407) 843 3939 irodriguez@hamiltonmiller.com oiicilpleadings@wickersmith.Gem Counsel for Defendant/ Cross¬ Counsel for Defendant, Expert Defendant, Premier Plastering of Painting & Pressure Washing, Inc. Central Florida, Inc. Dismissed-with- PrejudieeFy Third- PaHy-PkHntiff l/l 6/2024 GREGORY E. BLACKWELL KIERAN F. O’CONNOR ELIZABETH DROZ-STOLINAS O’Connor & Stolinas Law Group, PLUG 800 North Magnolia Avenue, Ste 1350 Orlando, FL 32803 (407) 843 '2100 28 tclark@oconlaw.com edroz-stolinas@oconlaw.com rps@oconlaw.com Counsel for Third Party Defendant, Dxperi-42aini4H$y&-Pres^^ IIr 1 Dismissed with Prejudice by’ Third- Party Plaintiff, 1/16/2024 29 In The Matter Of: Villas at Emerald Lake Homeowners Association, Inc. v. Royal Oaks Homes, LLC., et al Felix Martin Vol. I June 15, 2021 Legal Realtime Reporting 622 E. Washington Street Suite 200 Orlando, Florida 32801 Original File 6-15-21.txt Min-U-Script® with Word Index Villas at Emerald Lake Homeowners Association, Inc. v. Felix Martin - Vol. I Royal Oaks Homes, LLC., et al June 15, 2021 Page 1 Page 3 1 IN THE CIRCUIT COURT, NINTH 1 APPEARANCES CONTINUED: JUDICIAL CIRCUIT, IN AND FOR 2 OSCEOLA COUNTY, FLORIDA 2 PETER J. KAPSALES, ESQUIRE OF: MILNE LAW GROUP, P.A. 3 CASE NO.: 2020-CA-002942-ON 3 301 East Pine Street Suite 525 4 VILLAS AT EMERALD LAKE 4 Orlando, Florida 32801 HOMEOWNERS ASSOCIATION, APPEARING ON BEHALF OF WEATHERMASTER BUILDING 5 INC., a Florida not for 5 PRODUCTS, INC. profit corporation, 6 6 ANDREW E. HOLWAY, ESQUIRE Plaintiff, OF: HILL, WARD, HENDERSON 7 v. 7 101 East Kennedy Boulevard Suite 3700 8 ROYAL OAK HOMES, LLC, a 8 Tampa, Florida 33602 Florida limited liability APPEARING ON BEHALF OF WEINTRAUB INSPECTIONS & 9 company, et al., 9 FORENSICS, INC. n/k/a WEINTRAUB ENGINEERING AND INSPECTIONS, INC. 10 Defendants. 10 ______________________________/ D. BRYAN HILL, ESQUIRE 11 11 OF: MILBER, MAKRIS, PLOUSADIS & SEIDEN, LLP AND RELATED CROSS-ACTIONS. 1900 Northwest Corporate Boulevard 12 _______________________________/ 12 East Tower Suite 440 13 13 Boca Raton, Florida 33431 APPEARING ON BEHALF OF BROWN + BROWN COMPANY 14 VOLUME I 14 ARCHITECTURE, INC. (PAGES 1 THROUGH 206) 15 15 ERIC J. NETCHER, ESQUIRE OF: WALKER, REVELS, GRENINGER & NETCHER, PLLC 16 ZOOM DEPOSITION OF: FELIX MARTIN 16 189 South Orange Avenue Suite 1830 17 DATE TAKEN: June 15, 2021 17 Orlando, Florida 32801 APPEARING ON BEHALF OF ALL GLASS INSTALLATION 18 TIME: 9:00 a.m. to 5:00 p.m. 18 CORP. 19 PLACE: ALL PARTIES ATTENDED VIA ZOOM 19 R. SCOTT ROSS, ESQUIRE OF: GROELLE & SALMON, P.A. 20 REPORTED BY: TARA K. SLOCUM, RPR, CRR, CSR 20 1715 North Westshore Boulevard State of California and Notary Suite 230 21 Public State of Florida 21 Tampa, Florida 33607 APPEARING ON BEHALF OF HELBERG ENTERPRISES, LLC 22 22 ANDREW MARSHALL, ESQUIRE 23 23 OF: HAMILTON, PRICE & MARSHALL, P.A. 2400 Manatee Avenue West 24 24 Bradenton, Florida 34205-4934 APPEARING ON BEHALF OF T&M CONSTRUCTION 25 25 Page 2 Page 4 1 A P P E A R A N C E S: 1 APPEARANCES CONTINUED: 2 NICHOLAS B. VARGO, ESQUIRE 2 NATALIE FISCHER, ESQUIRE ALLANA SMITH, ESQUIRE OF: CONROY SIMBERG 3 OF: BALL JANIK, LLP 3 Two South Orange Avenue 201 East Pine Street Suite 300 4 Suite 600 4 Orlando, Florida 32801 Orlando, Florida 32801 APPEARING ON BEHALF OF ADVANCED WRAPPING AND 5 APPEARING ON BEHALF OF THE PLAINTIFF 5 CONCRETE SOLUTIONS OF CENTRAL FLORIDA, INC. 6 MAI M. LE, ESQUIRE 6 RICHARD LEE RUSSO, ESQUIRE OF: MOODY & GRAF, P.A. OF: WRIGHT, FULFORD, MOOREHEAD & BROWN 7 1101 North Lake Destiny Road 7 505 Maitland Avenue Suite 200 Suite 1000 8 Maitland, Florida 32751 8 Altamonte Springs, Florida 32701-6306 APPEARING ON BEHALF OF PREMIER PLASTERING OF APPEARING ON BEHALF OF WELL HUNG WINDOWS AND 9 CENTRAL FLORIDA, INC. 9 DOORS, LLC 10 BETH ANN TOBEY, ESQUIRE 10 OF: LAW OFFICES OF THAMIR A.R. KADDOURI, JR., P.A. 11 3220 West Cypress Street 11 Tampa, Florida 33607 12 APPEARING ON BEHALF OF IMPERIAL BUILDING 12 CORPORATION 13 13 MICHAEL RUEL, ESQUIRE 14 OF: LUKS, SANTANIELLO, PETRILLO & COHEN 14 201 South Orange Avenue 15 Suit