Preview
Filing # 192473455 E-Filed 02/21/2024 10:17:42 PM
IN THE CIRCUIT COURT OF
THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA
COUNTY, FLORIDA
VILLAS AT EMERALD LAKE Case No.: 2020-CA-002942
HOMEOWNERS ASSOCIATION, INC., a
Florida not for profit corporation,
Plaintiff,
v.
ROYAL OAK HOMES, LLC, a Florida
limited liability company;
Defendants.
___________________________________/
And All Related Actions.
___________________________________/
PLAINTIFF’S RESPONSE IN OPPOSITION TO ROYAL OAK HOMES,
LLC’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO
PLAINTIFF’S PURPORTED LACK OF STANDING AS TO ROOF-
RELATED CLAIMS AND INCORPORATED MEMORANDUM OF LAW
Plaintiff, Villas at Emerald Lake Homeowners Association, Inc. (the
“Association”), by and through undersigned counsel, and pursuant to Fla. R. Civ. P.
1.510, hereby files its Opposition (the “Opposition”) to the Motion for Partial
Summary Judgment as to Plaintiff’s Lack of Standing as to Roof-Related Claims
(Doc. No. 926) (“Motion”), filed by Defendant Royal Oak Homes, LLC’s (“ROH”),
and states as follows:
I. SUMMARY OF ARGUMENT
In its Motion, ROH seeks summary judgment arguing that the Association
1
lacks standing to bring claims for damages to the roofs at the Project caused by
leaking and defectively installed roofing, framing, flashing, stucco, and related
components improperly constructed and installed by ROH and its subcontractors.
However, the Motion must be denied because:
(1) The Association’s Declaration of Covenants and Restrictions of
the Villas at Emerald Lake (“Declaration”) provides the Association
with the requisite standing to pursue the claims against ROH because
(i) the Association is responsible for the maintenance, repair, and
replacement of the exteriors of the common areas and townhomes at the
Project, including (explicitly) the roofs; (ii) the necessary repair to the
exterior walls, roofs, and common areas requires removal and
replacement of the improperly installed roofing and related components
and improperly constructed adjacent exteriors of the townhomes
causing damage to the same; (iii) the Association has, and continues to
maintain, repair, and replace the exteriors of the townhomes and roofs
and has incurred, and will continue to incur, damages in doing so; and
(iv) as a stranger to the Declaration, ROH cannot challenge the
Association’s interpretation of the provisions therein;
(2) Section 553.84, Florida Statutes, provides the Association with
standing to pursue claims for violations of the Florida Building Code
because the Association has been damaged by violations of the Code;
and
(3) Section 720.303, Florida Statutes, provides the Association with
standing because the Association members voted in favor of pursuing
this action as a matter of common interest.
For these reasons, and as discussed in greater detail herein, ROH has failed to
meet its burden to show that the Association lacks standing under any set of relevant
facts. In fact, the record evidence demonstrates that the Association has the requisite
standing to pursue the claims in the Complaint. Therefore, this Court should deny
2
the Motion as a matter of law and find the Association has standing to pursue its
claims against ROH and its subcontractors.
II. BACKGROUND AND INTRODUCTION
1. The instant case arises out of construction and design defects that exist
at the Villas at Emerald Lake Townhomes, located in Osceola County, Florida (the
“Community”). The Villas at Emerald Lake townhome community contains 12 two-
story residential buildings, comprised of 88 individual townhomes, as well as a
clubhouse and other common areas. See Compl. ¶ 39; see also the operative Second
Am. Compl., ¶¶ 40-41.
2. ROH constructed and developed 10 buildings comprised of 76 units
(units 110-149; and 162-197) within the Community of the townhomes (“Project”).
See Compl., ¶ 41 and Compl. Fn. 2.; see also Second Am. Compl., ¶ 42; and Second
Am. Compl. Fn. 2.
3. ROH admitted it contracted with independent contractors to construct
the Community. ROH also admits the size and composition of the Community. See
ROH’s Answer, ¶¶ 13, 41, and 43.
4. As the developer, ROH owed a statutory duty to the public (to whom it
marketed the townhomes), and particularly to the Townhome purchasers (who make
up the Association) to comply with the Florida Building Code (“FBC” or “Code”).
5. Further, as the licensed general contractor and permit applicant, ROH
3
owed a common law duty to supervise, direct, and manage the construction services
at the Community in a non-negligent manner, which included compliance with the
FBC, plans and specifications, industry standards, and in a good and workmanlike
manner.
6. The Project was ultimately constructed with numerous Code violations.
7. On November 23, 2020, the Association filed its initial Complaint in
this action, which asserts three causes of action against ROH for: (i) Negligence and
Vicarious Liability (“Count I”); (ii) Breach of the FBC (“Count II”); and (iii) Breach
of Implied Warranties (“Count III”). All Counts relate to the negligent and defective
construction of the Community. See Complaint (Doc. No. 2); see also Second
Amended Complaint (Doc. No. 506).
8. On or around March 24, 2023, ROH filed its Unopposed Motion for
Leave to file its Second Amended Crossclaim Complaint, wherein which it asserted
its eleventh affirmative defense alleging that the Association’s claims should be
barred or limited to the extent the Association purportedly lacks standing to bring
the claims asserted in its Complaint. (Doc. No. 739).
9. On January 19, 2024, ROH filed its Motion arguing, consistent with its
twenty-fourth affirmative defense, that the Association’s claims should be barred or
limited to the extent the Association purportedly lacks standing to bring the claims
for the defects in the roof as asserted in its Complaint. (Doc. No. 923).
4
10. The Association opposes ROH’s twenty-first affirmative defense and
Motion for the reasons outlined both above and below.
11. Accordingly, ROH fails to meet its burden because the “court must
draw every inference in favor of the non-moving party [the Association] when
considering whether a genuine issue of material fact exists. . .” Allen v. Board of
Public Educ. For Bibb Cnty., 495 F. 3d 1306, 1313 (11th Cir. 2007) (emphasis
added).
III. MEMORANDUM OF LAW
A. Summary Judgment Standard.
Summary judgment is only appropriate where the pleadings, depositions, and
affidavits show that there is no genuine issue of material fact, and that the movant
is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
An issue of fact is “material” if it is a legal element of the claim under
applicable substantive law which might affect the outcome of the case.
Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); Allen v. Tyson
Foods, 121 F.3d 642, 646 (11th Cir.1997). An issue of fact is “genuine”
if the record taken as a whole could lead a rational trier of fact to find
for the non-moving party. Allen, 121 F.3d at 646. On a motion for
summary judgment, the Court must view all the evidence and all
factual inferences drawn therefrom in the light most favorable to
the non-moving party, and determine whether that evidence could
reasonably sustain a jury verdict. Celotex, 477 U.S. at 322-23; Allen,
121 F.3d at 646. While the burden on the movant is great, the opposing
party has a duty to present affirmative evidence in order to defeat a
properly supported motion for summary Judgment. Anderson, 477
U.S. at 252.
5
Downs v. U.S., No. 06-20861-CIV, 2007 WL 842136 at *3 (S.D. Fla. Mar. 20, 2007).
(Emphasis added).
Importantly, Fla. R. Civ. P. 1.510 does not immediately shift the burden of
disproving an affirmative defense to a nonmovant; that burden remains with ROH
until satisfied. On April 29, 2020, the Florida Supreme Court issued Opinion No.
SC20-1490, In re: Amendments to Florida Rule of Civil Procedure 1.510, noting that
the evidentiary burden that a party must meet at trial is the touchstone that
accurately measures whether a genuine issue of fact exists:
First, those applying new rule 1.510 must recognize the fundamental
similarity between the summary judgment standard and the directed
verdict standard. … under both standards, the substantive evidentiary
burden of proof that the respective parties must meet at trial is the only
touchstone that accurately measures whether a genuine issue of
material fact exists to be tried.
In re Amendments to Fla. Rule of Civil Procedure 1.510, No. SC20-1490, 6-7 (Fla.
Apr. 29, 2021) (emphasis added) (“Amendment”). Thus, while “a moving party that
does not bear the burden of persuasion at trial can obtain summary judgment without
disproving the nonmovant’s case,” the converse is equally true: a movant with the
burden of proof must disprove the nonmovant’s case - here, that there is no genuine
issue of material fact as to ROH’s affirmative defense regarding the Association’s
purported lack of standing:
If the movant bears the burden of persuasion at trial, “that party must
support its motion with credible evidence—using any of the materials
6
specified in Rule 56(c)—that would entitle it to a directed verdict if not
controverted at trial.” Celotex, 477 U.S. at 331. Any doubt regarding
whether a trial is necessary must be resolved in favor of the
nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
United States v. Friedman, No. 15-80407-CIV, 2015 WL 12550904, at *1 (S.D. Fla.
July 7, 2015).
Because ROH asserts lack of standing as an affirmative defense, they bear
the burden of persuasion at trial. Hess v. Philip Morris USA, Inc., 175 So. 3d 687,
694–95 (Fla. 2015) (“The defendant has the burden to prove an affirmative
defense.”). Therefore, ROH has the burden of persuasion at trial. Hess v. Philip
Morris USA, Inc., 175 So. 3d 687, 694–95 (Fla. 2015) (“The defendant has the
burden to prove an affirmative defense.”). Accordingly, ROH has the burden to show
that it is entitled to a directed verdict on its affirmative defense of purported lack of
standing when all evidence and inferences are drawn in favor of the Association.
B. Summary Judgment is Properly Entered Against a Movant Under Fla.
R. Civ. P. 1.510(f).
Under the newly amended Fla. R. Civ. P. 1.510(f)(1), the Court may “grant
summary judgment for a nonmovant.” Under the Florida Supreme Court’s Opinion,
a party “that does not bear the burden of persuasion at trial can obtain summary
judgment without disproving the nonmovant’s case.” Opinion, pg. 6. “Under Celotex
and therefore the new rule, such a movant can satisfy its initial burden of production
in either of two ways: ‘[I]f the nonmoving party must prove X to prevail [at trial],
7
the moving party at summary judgment can either produce evidence that X is not so
or point out that the nonmoving party lacks the evidence to prove X.” Id., pg. 6-7
(emphasis added). “A movant for summary judgment need not set forth evidence
when the nonmovant bears the burden of persuasion at trial.” Id.
Thus, it logically follows that where a movant bears the burden of proof at
trial (as ROH does here), the nonmovant (Association) can simply point out that the
moving party “lacks the evidence to prove” that the Association lacks standing for
the roofs and therefore overcomes summary judgment.
C. Standing in Florida
Following standing principles generally, “[a] plaintiff must demonstrate the
existence of an actual controversy between the plaintiff and the defendant in which
plaintiff has a sufficient stake or cognizable interest which would be affected by the
outcome of the litigation in order to satisfy the requirements of standing.” Matheson
v Miami Dade County, 258 So. 3d 516, 519 (Fla. 3d DCA 2018) (citing Warren Tech.,
Inc. v. Carrier Corp., 937 So. 2d 1141, 1142 (Fla. 3d DCA 2006)). Further, “where
a plaintiff is either the real party in interest or is maintaining an action on behalf of
the real party in interest, its action cannot be terminated on the ground that it lacks
standing.” Kumar Corp. v Nopal Lines, 462 So. 2d 1178, 1183 (Fla. 3d DCA 1985);
see also § 720.303(1), Fla. Stat; Fla. R. Civ. P. 1.221.
Here, an actual controversy exists between the Plaintiff and ROH as the
8
negligent installation of the roofs, accessories, adjacent components, and related
waterproofing elements by ROH and its subcontractors have caused damage to the
exteriors that the Association has the right to maintain and repair.
IV. ARGUMENT
ROH’s Motion must be denied because: (i) the Association is responsible for
the maintenance, repair, and replacement of the exteriors of the common areas and
townhomes at the Project, including (explicitly) the roofs; (ii) the necessary repair
to the exterior walls, roofs, and common areas requires removal and replacement of
the improperly installed roofing and related components and improperly constructed
adjacent exteriors of the townhomes causing damage to the same; (iii) the
Association has, and continues to maintain, repair, and replace the exteriors and
roofs of the Project and has incurred, and will continue to incur, damages in doing
so; and (iv) as a stranger to the Declaration, ROH cannot challenge the Association’s
interpretation of the provisions therein; (2) Section 553.84, Florida Statutes,
provides the Association with standing to pursue claims for violations of the Florida
Building Code because the Association has been damaged by violations of the Code;
and (3) Section 720.303, Florida Statutes, provides the Association with standing
because the Association members voted in favor of pursuing this action as a matter
of common interest. As such, this Court should deny ROH’s Motion.
9
A. The Association is required to maintain, repair, and replace the
exteriors of the Common Property
The express language of the Declaration requires the Association to maintain,
repair, and replace the exteriors of the Common Property 1 within the Community,
including the townhomes “[f]or the purpose of enhancing and protecting the value,
attractiveness, and desirability of the residential units.” See Composite Exhibit A 2,
Ex. A-1, p.7. Further, the Association’s enumerated responsibility covers
“enforcement of rules and maintenance, repair and replacement of the Common
Areas3, with funds made available by the Association for such purposes.” See Id., p.
10 at ¶ 3.1. Multiple provisions of the Declaration provide that the Association is
responsible for the maintenance, repair, and replacement of the exteriors of the
townhomes, including the roofs. See Composite Ex. A, A-1, p.1, sections 2, 3.1, 4,
5, 6, 7, 9, 11; A-2, section 2. The roofs are part of the exteriors of the Common Areas
and Common Property for which the Association is responsible for the maintenance
and repair. See Ex. A-1, A-2, and A-4. This is evidenced by (1) the previously
performed and continuing maintenance, repairs, and replacement of the roof leaks
1
The Master Declaration, which is incorporated into the Declaration, defines “Common Property” as all personal
property acquired by the Association and easements reserved on the plat of the Property or conveyed to the
Association. The Master Declaration also states explicitly, “The Association shall assume the liability and provide for
the perpetual maintenance of all walls and drainage facilities.” Ex. A-2, p.2 (c) (Emphasis added).
2
Comprised of Exhibit A-1, Declaration of Covenants and the Restrictions of the Villas at Emerald Lake; Exhibit A-
2, Declaration of Covenants and Restrictions Emerald Lake Poinciana; Exhibit A-3, First Amendment to the
Declaration of Covenants and Restrictions of the Villas at Emerald Lake; and Exhibit A-4, Second Amendment to
the Declaration of Covenants and Restrictions of the Villas at Emerald Lake.
3
The Declaration defines “Common Area” as all real property now and hereafter owned by the Association or
dedicated for use or maintenance by the Association or its members. Ex. A-1, p.7 ¶ 1.5.
10
and reserve funding by the Association for the repair and replacement of the roofs
at the townhomes; and (2) the Association’s expert’s opinions that the roofs, as
components of the exterior systems, must be removed and replaced to correct the
defective installation and repair the damage to the exteriors of the buildings. See,
Records of Repairs, Exhibit C 4; see also Composite Exhibit B, Deposition
Testimony of Felix Martin, Vol I, pp. 183:25-188:6. The Motion should be denied.
i. The Association is responsible for the maintenance, repair, and
replacement of the exteriors of the Common Property, including the roofs.
The Declaration enumerates multiple provisions that explicitly place the
responsibility with the Association for the maintenance of the roofs of the
townhomes. See generally, Composite Ex. A.
First, Article V, Section 2 of the Master Declaration states that:
4
The records of these temporary repairs were verified by the Association’s corporate representative accompanying
testimony that the Association has taken on the financial burden of these temporary repairs. See Ex. D, pp.76:9-77:2.
11
See Ex. A-2, Art. V., sec 2. This section requires the Association to assess its
members for the “improvement and maintenance of properties, services, and
facilities, which are devoted to the purposes and related to the use and enjoyment of
the Common Property and of the homes situated on the Property.” Id.
Next, the Declaration specifically enumerates the Association’s responsibility
for the protection, maintenance, repair, and replacement to the of the Common Areas
. . . [and] all exterior painting of buildings, and normal wear and tear of the roof. Ex.
A-3, sec. 7.1. The Declaration further gives the Association to take on or enforce any
maintenance and repair requirements of the owners. Ex. A-1, section 7.1 and 11.
Lastly, the Declaration’s Second Amendment specifically provides that the
Association is responsible for, amongst other things, “any structural policy of
insurance purchased by the Association with respect to the Living Units, and the
Association shall levy Assessments to each Owner in connection with the
foregoing.” See Ex. A-4, section 4.2.
Here, the Association’s claims concern the exteriors of the Community,
including the roofs – which the Association explicitly is responsible for. Therefore,
the Association has the requisite standing to bring claims for the roof. The Motion
should be denied.
12
ii. The roofs are part of the building exteriors.
In furtherance of its investigation of the construction defects throughout the
Community, the Association retained expert, Marcon Forensics, LLC (“Marcon”), a
building exterior and construction forensic investigation company with extensive
experience performing evaluations and repairs to structures and building exteriors.
See generally, Ex. B, Marcon conducted an extensive investigation of the conditions
of the townhomes at the Project, including a visual examination of all 76 townhomes
at issue and invasive testing at numerous locations. Id. at Vol I, p. 48:24; Marcon
identified numerous exterior building defects which correlate with water intrusion
related damages. See generally, Ex. B. These exterior defects include the improper
installation of stucco, windows and doors, flashings, roofing, and weather resistive
barrier. Id. Marcon concluded that defects and deficiencies in the exteriors of the
Project violate the Florida Building Code, requiring that the exterior walls provide a
weather-resistant exterior wall envelope, including properly waterproofed and
constructed roofs. Id. at Vol. I, pp. 183:25-188:6.
According to Marcon, to correct the deficiencies and defects in the exterior
walls of the Project and to access the damaged areas of the same, the roofs, as part
of the exterior assemblies, must be removed and replaced to properly repair the
damage related to the improper construction of the same and to properly flash and
integrate the roofs with the rest of the building exterior, as required by the Florida
13
Building Code. Id. In short, to perform the repairs necessary to address the
construction defects in the exteriors, including the defective roof and roof accessory
installation, the Association must remove and perform repairs to the roofs to properly
repair the damaged exterior walls and properly integrate the roofs with the adjacent
exterior wall components. Id. Accordingly, the roofs, as a part of the Project’s
exteriors, are included within the Association’s responsibility to maintain, repair, and
replace the exteriors of the Community. ROH provided no evidence to dispute
Marcon’s opinions. Therefore, the Motion should be denied.
iii. ROH fails to consider all applicable provisions of the Declaration.
In the Motion, ROH conveniently fails to address all relevant portions of the
Declaration. See generally, Motion. Specifically, ROH argues that the Association is
responsible for roofs only to address “normal wear and tear;” and that under the same
amendment, only the “owners ‘are responsible for repair and replacement of all roof
damaged (sic) caused by anything other than normal than wear and tear.’” Motion,
p. 5. ROH attempts to argue that pursuant to these provisions, the Association is not
responsible for the maintenance and repair of the roofs and thus lacks standing for
these claims. Motion, p. 12.
However, this narrow reading of the Declaration fails to accurately define the
true breadth of the Association’s responsibilities as set forth in Composite Ex. A
above. ROH fails to address the portions of the Declaration that provide the
14
Association with maintenance, replacement, and repair responsibilities for the
Community, including the roofs – for the welfare of the Community. As such, ROH’s
incomplete reading of the Declaration improperly renders the provisions that do
provide the Association with rights and responsibility for the maintenance, repair,
and replacement of the roofs at the Community meaningless. See Exhibit A-3. See
Super Cars of Miami, LLC v. Webster, 300 So. 3d 752, 755 (Fla. 3d DCA 2020) (“A
cardinal principal of contract interpretation is that the contract must be interpreted
in a manner that does not render any provision of the contract meaningless.”). ROH’s
reading of the Declaration cannot be the correct interpretation of the Declaration’s
language.
Further, ROH relies on an incorrect interpretation of the First Amendment of
the Declaration, describing a limited amendment to sections 7.1 and 7.2, asserting
that these amended provisions specifically disallow the Association from performing
maintenance, repair, or responsibility for roof repairs with the exception of “normal
wear and tear.” See Motion, p. 5. Amended sections 7.1 and 7.2 also do not define
“normal wear and tear,” what is “other than normal wear and tear,” and what
conditions would warrant intervention from the Association. See Ex. A-3, p. 1.
The Association testified that, even in using “useful life” as a determining
time period for “normal wear and tear,” that “a useful life cycle by a manufacturer
installer should be, would be mitigated or destroyed if it wasn’t properly installed.”
15
Ex. D, Vol. II, p. 165:13-15. Such is the case here, and accordingly, the Association
is well within its right to bring claims for the improper and defective installation of
the roofs. This evidence alone illustrates why ROH’s Motion should be denied.
iv. ROH lacks standing to challenge the Association’s interpretation of the
Governing Documents, or to assert its own interpretation of the terms
contained within.
Notwithstanding the factually dispositive nature of the Governing Documents
conferring standing, ROH’s standing defense also fails because it is not a party to
those Governing Documents. As such, ROH is prohibited from advancing its own
interpretation of the Governing Documents because it is a stranger to them.
Florida law is clear that “[t]he intent of the parties to a contract should govern
the construction of the contract.” Am. Home Assurance Co. v. Larkin Gen. Hosp.,
Ltd., 593 So. 2d 195, 197 (Fla. 1992). The Declaration is a contract between the
Association and its members. As a stranger to the Declaration, ROH does not have
standing to challenge the Association’s interpretation, or to assert its own
interpretation (let alone to invoke the parol evidence rule, as it tries to do). See
Companion Prop. & Cas. Ins. Co. v. Category 5 Mgmt. Grp., LLC, 189 So. 3d 905,
908 (Fla. 1st DCA 2016) (a party may only advance constructions of contracts to
which it is a party); see also Pittman v. Providence Washington Ins. Co., 394 So. 2d
223, 224 (Fla. 5th DCA 1981) (finding “[t]he parol evidence rule . . . cannot be
invoked by a stranger to [a] contract”); see Beacon Park Phase II, supra, at ¶ 16.
16
As in Beacon Park Phase II, “[t]he Association is entitled to exercise its
‘judgment’ as to implementing and levying assessments for the ‘general benefit of
its members’” and ROH “lack[s] standing to advance a difference construction of
the Declaration.” See Beacon Park Phase II, supra, ¶¶ 15-16 (citing Companion
Prop. & Cas. Ins. Co., supra, at 908; Pittman, supra, at 224; and Lake Forest Master
Cmty. Ass’n, Inc. v. Orlando Lake Forest Joint Venture, 10 So. 3d 1187, 1195 (Fla.
5th DCA 2009) (acknowledging developer defendant would lack standing to
challenge the legitimacy of an association vote if not a member). ROH’s Motion
should be denied.
v. The Association has incurred and will continue to incur damages
associated with repairs required as a result of the construction defects.
In accordance with the terms within the Declaration, the Association has
performed roof repairs at the Project, including addressing roof damage and roof
leaks. See Ex. D, pp. 76:9-77:2 and Composite Ex. C. ROH attempts to assert that,
as the Association and its representatives have advised the owners in the past that
the owners must maintain their own insurance and perform their own roof repairs,
the Association takes no responsibility and holds no ownership over the roofs at the
Community. Motion, p. 6. This is an inaccurate inference made from the testimony
provided. The Association’s representative further testified that the Association’s
maintenance responsibilities would be reviewed and determined on a case-by-case
basis and that they rely on the Association’s legal counsel and the governing
17
documents to determine owner versus Association responsibility. Ex. D, Vol. II,
pp.162:14-163:22. The Association’s responsibility to maintain the exteriors of the
townhomes does not override an owner’s right to make changes or repairs to their
own lot. In fact, any roof repairs that do occur require approval before any permitted
work is performed. Ex. A-1, section 5. ROH’s Motion should be denied.
B. The Association also has standing under the express language of
section 553.84, Florida Statutes, to pursue claims for building code
violations
In addition, section 553.84, Florida Statutes provides as follows:
Notwithstanding any other remedies available, any person or party, in
an individual capacity or on behalf of a class of persons or parties,
damaged as a result of a violation of this part or the Florida Building
Code, has a cause of action in any court of competent jurisdiction
against the person or party who committed the violation.
§ 553.84, Fla. Stat. (emphasis added).
As set forth in detail above, the Association is responsible for maintenance
and repairs of the exteriors of the Community. The testimony from Marcon shows
that the Project has been damaged from Florida Building Code violations caused by
the improper installation of the roofs, flashing, and adjacent elements at the
Community. See generally, Ex. B. ROH was the developer and general contractor
for the Project. Accordingly, the Association has suffered harm as a result of the
Florida Building Code violations committed by ROH and its subcontractors and has
standing to sue them to recover those damages. The Motion should be denied.
18
C. The Association has standing to pursue claims on behalf of its
members, who voted in favor of having the Association initiate this
action under section 720.303, Florida Statutes
The relevant text of section 720.303(1), Florida Statutes, provides that:
The powers and duties of an association include those set forth in this
chapter and, except as expressly limited or restricted in this chapter,
those set forth in the governing documents. After control of the
association is obtained by members other than the developer, the
association may institute, maintain, settle, or appeal actions or hearings
in its name on behalf of all members concerning matters of common
interest to the members, including, but not limited to, the common
areas; roof or structural components of a building, or other
improvements for which the association is responsible; mechanical,
electrical, or plumbing elements serving an improvement or building
for which the association is responsible; representations of the
developer pertaining to any existing or proposed commonly used
facility; and protesting ad valorem taxes on commonly used facilities.
The association may defend actions in eminent domain or bring inverse
condemnation actions. Before commencing litigation against any party
in the name of the association involving amounts in controversy in
excess of $100,000, the association must obtain the affirmative
approval of a majority of the voting interests at a meeting of the
membership at which a quorum has been attained.
(emphases added).
The Association’s membership voted to approve this action as a matter of
common interest, as required by section 720.303, Florida Statutes. See Ex. D. Vol.
II, pp. 212:6-15; and 226:3-227-4. The majority vote approving this action in
compliance with section 720.303, Florida Statutes, confirms that the Association
can bring this action as a matter of common interest. At a minimum, the vote
demonstrates a genuine dispute of material fact as to whether the negligent
installation of the roofs is a matter of common interest to the Association. Thus, the
19
Motion should be denied.
i. The interpretation of section 720.303, Florida Statutes, shows that
the Association has standing to pursue any claim which its members
determine is a matter of common interest.
A review of section 720.303(1), Florida Statutes, reveals the legislature’s
intent to provide a non-exclusive list of matters of common interest. Florida courts
have been clear that when a statute uses the phrase, “including but not limited to,”
the legislature has signified that the statute or rule contains only a partial list. See
Alligator Enterprises, Inc. v. General Agent’s Ins. Co., 773 So. 2d 94, 95 (Fla. 5th
DCA 2000) (holding use of “including without limitation”—or some derivation
thereof—indicates an incomplete, rather than complete, list).
The examples contained in section 720.303, Florida Statutes, (describing
examples of matters of common interest) are not exclusive of other matters not
specifically listed. To conclude otherwise ignores the plain text of section 720.303,
Florida Statutes, which contains the phrase, “including but not limited to,” before
providing a list of several, non-exhaustive examples. Accordingly, the Association’s
right to sue for claims relating to common areas and property maintained by the
Association is not contradicted by finding that the Association has the general power
to sue for matters of common interest.
Further, “no part of a statute, not even a single word, should be ignored, read
out of the text, or rendered meaningless, in construing the provision.” Scherer v.
20
Volusia County Dept. of Corr., 171 So. 3d 135, 139 (Fla. 1st DCA 2015). In weighing
the effect of a statute, courts must remember that “the Legislature does not intend to
enact useless provisions, and courts should avoid readings that would render a part
of a statute meaningless.” State v. Goode, 830 So. 2d 817, 824 (Fla. 2002).
Even before the enactment of section 720.303, Florida Statutes (2003),
homeowners’ associations in Florida were entitled to maintain actions for defects in
common areas and for property the association was responsible for maintaining. See
Strathmore Gate-E. at Lake St. George Homeowners’ Ass’n Inc. v. Levitt Homes,
Inc., 537 So. 2d 657, 658 (Fla. 2d DCA 1989). This Court should deny the Motion.
ii. The Association’s members and its Board determined that this action is of
“common interest” to the members.
The Association’s action against ROH and its subcontractors follows the
express intent of the legislature to grant standing to the Association for matters of
common interest as decided by a membership vote. See Florida Staff Analysis of
H.B. 861, 4/16/2003. The Association’s membership voted to approve this action as
a “matter of common interest”, as required by section 720.303, Florida Statutes. See
Ex. D. Vol. II, pp. 212:6-15; and 226:3-227-4. The majority vote approving this
action in compliance with section 720.303, Florida Statutes, confirms that the
Association can bring this action as a matter of common interest. At a minimum, the
vote demonstrates a genuine issue of material fact as to whether the negligent
installation of all windows and siding at the Community is a “common interest” to
21
the Association. Therefore, ROH’s Motion should be denied.
iii. Florida courts have broadly interpreted the phrase “matters of common
interest” in favor of standing to homeowners’ associations.
Florida courts have consistently interpreted the phrase “matters of common
interest” broadly to allow associations to sue on behalf of their members, finding
that damages to automobiles from leaking rusted water, and defects contained within
the units were found to be matters of common interest. Charley Toppino & Sons, Inc.
v. Seawatch at Marathon Condo. Ass’n, Inc., 658 So. 2d 922, 923 (Fla. 1994); see
also Allied Tube & Conduit Corp. v. Latitude on River Condo. Ass'n, Inc., 3D19-
2044, 2020 WL 3444902, at *1 (Fla. 3d DCA June 24, 2020).
In Seawatch, the Third District Court of Appeal stated that “the common
interest provision of the rule has been interpreted to permit a class action by the
association for a construction defect located physically within a unit, rather than in
the common elements, if the defect is prevalent throughout the building.” 610 So.
2d 470, 473 (Fla. 3d DCA 1992), approved, 658 So. 2d 922 (Fla. 1994).
Since Seawatch, courts have held that because a condominium association has
standing to pursue claims for property it does not own or maintain, a homeowners’
association of single-family residences would have the same authority. It is no
accident that the language in § 718.111, providing standing for condominium
associations, and section 720.303, Florida Statutes, providing standing for
homeowners’ associations, are similar. Accordingly, Florida courts have consistently
22
found that homeowners’ associations, under section 720.303, Florida Statutes, have
standing to pursue claims relating to property not owned or controlled by the
association, as long as the matter is one of common interest to the members. See
Homeowner’s Ass’n of Overlook, Inc. v. Seabrooke Homeowners’ Ass’n, Inc., 62 So.
3d 667, 669 (Fla. 2d DCA 2011) (holding a homeowners’ association may assert
claims as matters of common interest where no “common element” under the
declaration is at issue); see also Maronda Homes, Inc. of Florida v. Lakeview
Reserve Homeowners’ Ass’n, Inc., 127 So. 3d 1258, 1261 (Fla. 2013) (holding, under
section 720.303, Florida Statutes, an association does not lack standing to seek
recovery of damages to individual homes caused by defective construction of
roadways and drainage systems because an association has the right to bring claims
on behalf of its owners for a matter of common interest).
Here, as voted on and approved by the owners/members, the Association and
its members share a “common interest” in repairing the defectively installed roofs.
iv. Nearly identical Motions for Summary Judgment on nearly identical
issues were recently denied in this Court, the Fourth Judicial Circuit
(Duval County) and Seventh Judicial Circuit (St. Johns County)
Four motions for summary judgment considering similar issues were recently
denied in this Court, the Fourth Judicial Circuit, and the Seventh Judicial Circuit.
The Orders from all four cases are attached as Composite Exhibit E.
This Court recently held in both Beacon Park Phase II Homeowners
23
Association, Inc. v. D.R. Horton, Inc., et al, Case No.: 2020-CA-007042-O, Filing
#153978465 (Fla. 9th Cir. July 25, 2022); and 101 Eola Condo. Ass’n, Inc. v. BA
Eola, Inc., et al., Case No.: 2017-CA-009778, Filing #13284037 (Fla. 9th Cir.
August 17, 2021), this Court correctly ruled that both a homeowner and
condominium association had standing to bring claims for defective construction of
the communities despite limitations in their corresponding Declarations. Id. In doing
so, this Court held that, under Fla. R. Civ. P. 1.221 an action must only “concern” a
matter of common interest rather than “involve” a matter of common interest; and,
that an Association has agency to exercise its judgment to determine that its
governing documents obligate it to perform maintenance, repairs, and replacements
(where necessary). Id.
Similarly, the Fourth Judicial Circuit Court held in Flagler Station
Homeowners’ Association, Inc. v. Pulte Home Corp., et al., Case No.: 16-2017-CA-
003831, that the “responsibility of the unit owners (to maintain the windows) does
not foreclose the Association from assuming responsibility for repairs to or
replacement of windows, particularly when the alleged need for repairs and
replacements all stem from a common cause and when the reason for the repairs and
replacements arises from the integration and sealing of the windows with the exterior
structure of the buildings” and that when the members of the Association voted to
authorize the Association to bring the claims “recognized that the claims alleged are
24
of common interest to the Association and its members and that the Association had
assumed responsibility for the subject matter of the claims.” Id. at *3
Lastly, in Islander Townhome Homeowners Association, Inc. v. KB Home
Jacksonville, LLC, et al., Case No.: CA19-0670, the Seventh Judicial Circuit Court
also denied a similar motion. The court found that the Islander association’s
governing documents created its responsibility to maintain the exterior walls of the
townhomes and, as part of that obligation, the association interpreted its
responsibility to include maintaining, repairing, and replacing windows; and that the
association’s vote to approve the litigation under section 720.303, Florida Statutes,
demonstrated “a genuine issue of material fact as to whether the negligent
installation of the windows [was] a matter of common interest to the Association.”
Id. at *4-6. Due to the foregoing, the Association was held to hold “a sufficient stake
or cognizable interest which would be affected by the outcome of the litigation in
order to satisfy the requirements of standing.” Id. at *6.
Here, the issues are nearly identical to those in 101 Eola, Beacon II, Flagler,
and Islander and, for the same reasons, ROH’s Motion should be denied.
V. CONCLUSION
ROH’s Motion must be denied. As lack of standing is an affirmative defense
put forth by ROH, ROH bears the burden of proving no genuine dispute of material
fact exists as to the Association’s lack of standing. ROH failed to do so. For all of
25
the reasons outlined above, the record reflects a genuine issue of material fact, that
different inferences can reasonably be drawn from the facts, and as such, the doubt
as to the Association’s lack of standing must be resolved against the ROH. Therefore,
the ROH’s Motion must be denied.
DATED: This 21st day of February, 2024.
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. 100311
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.
26
CERTIFICATE OF SERVICE
I certify that a true copy of the foregoing has been filed via the Florida Courts
E-Filing Portal on February 21, 2024.
/s/ Kasey L. Joyce
Kasey L. Joyce, Esq.
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 beth.tobey@tampalaw.org
rleavengood@carltonfields.com
mramos@carltonfields.com Counsel for Defendant, Imperial
nbonilla@carltonfields.com Building Corporation
ejohnson@carltonfields.com
krick@carltonfields.com
Counsel for Defendant, Royal Oak
Homes, LLC
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
27
eservice@milnelawgroup.com
DENISE M. ANDERSON
ASHLEY M. MATTINGLY Counsel for Defendant, Weathermaster
Butler Weihmuller Katz Craig LLP Building Products, Inc.
400 N. Ashley Drive, Suite 2300
Tampa, FL 33602
(813) 281-1900
danderson@butler.legal
amattingly@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
Defendant, Weintraub Inspections &
Forensics, Inc. n/k/a Weintraub
Engineering and Inspections, Inc.
JAYNE ANN PITTMAN BRUCE R. CALDERON
NATALIE C. FISCHER ALICIA Z. GROSS
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
28
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, Advanced breisch@milbermakris.com
Wrapping and Concrete Solutions of kmcdowell@milbermakris.com
Central Florida, Inc. sskowronski@milbermakris.com
Counsel for Defendant/Cross-
Defendant, Brown + Company
Architecture, Inc.
JENNIFER MILLER BROOKS 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
jmiller@hamiltonmillerlaw.com cebanks@gspalaw.com
ktsiring@hamiltonmillerlaw.com mcoleman@gspalaw.com
jcasaccio@hamiltonmillerlaw.com
Counsel for Third-Party Defendant,
Counsel for Defendant/Cross- Helberg Enterprises,
Preview
Filing # 192473455 E-Filed 02/21/2024 10:17:42 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA VILLAS AT EMERALD LAKE Case No.: 2020-CA-002942 HOMEOWNERS ASSOCIATION, INC., a Florida not for profit corporation, Plaintiff, v. ROYAL OAK HOMES, LLC, a Florida limited liability company; Defendants. ___________________________________/ And All Related Actions. ___________________________________/ PLAINTIFF’S RESPONSE IN OPPOSITION TO ROYAL OAK HOMES, LLC’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO PLAINTIFF’S PURPORTED LACK OF STANDING AS TO ROOF- RELATED CLAIMS AND INCORPORATED MEMORANDUM OF LAW Plaintiff, Villas at Emerald Lake Homeowners Association, Inc. (the “Association”), by and through undersigned counsel, and pursuant to Fla. R. Civ. P. 1.510, hereby files its Opposition (the “Opposition”) to the Motion for Partial Summary Judgment as to Plaintiff’s Lack of Standing as to Roof-Related Claims (Doc. No. 926) (“Motion”), filed by Defendant Royal Oak Homes, LLC’s (“ROH”), and states as follows: I. SUMMARY OF ARGUMENT In its Motion, ROH seeks summary judgment arguing that the Association 1 lacks standing to bring claims for damages to the roofs at the Project caused by leaking and defectively installed roofing, framing, flashing, stucco, and related components improperly constructed and installed by ROH and its subcontractors. However, the Motion must be denied because: (1) The Association’s Declaration of Covenants and Restrictions of the Villas at Emerald Lake (“Declaration”) provides the Association with the requisite standing to pursue the claims against ROH because (i) the Association is responsible for the maintenance, repair, and replacement of the exteriors of the common areas and townhomes at the Project, including (explicitly) the roofs; (ii) the necessary repair to the exterior walls, roofs, and common areas requires removal and replacement of the improperly installed roofing and related components and improperly constructed adjacent exteriors of the townhomes causing damage to the same; (iii) the Association has, and continues to maintain, repair, and replace the exteriors of the townhomes and roofs and has incurred, and will continue to incur, damages in doing so; and (iv) as a stranger to the Declaration, ROH cannot challenge the Association’s interpretation of the provisions therein; (2) Section 553.84, Florida Statutes, provides the Association with standing to pursue claims for violations of the Florida Building Code because the Association has been damaged by violations of the Code; and (3) Section 720.303, Florida Statutes, provides the Association with standing because the Association members voted in favor of pursuing this action as a matter of common interest. For these reasons, and as discussed in greater detail herein, ROH has failed to meet its burden to show that the Association lacks standing under any set of relevant facts. In fact, the record evidence demonstrates that the Association has the requisite standing to pursue the claims in the Complaint. Therefore, this Court should deny 2 the Motion as a matter of law and find the Association has standing to pursue its claims against ROH and its subcontractors. II. BACKGROUND AND INTRODUCTION 1. The instant case arises out of construction and design defects that exist at the Villas at Emerald Lake Townhomes, located in Osceola County, Florida (the “Community”). The Villas at Emerald Lake townhome community contains 12 two- story residential buildings, comprised of 88 individual townhomes, as well as a clubhouse and other common areas. See Compl. ¶ 39; see also the operative Second Am. Compl., ¶¶ 40-41. 2. ROH constructed and developed 10 buildings comprised of 76 units (units 110-149; and 162-197) within the Community of the townhomes (“Project”). See Compl., ¶ 41 and Compl. Fn. 2.; see also Second Am. Compl., ¶ 42; and Second Am. Compl. Fn. 2. 3. ROH admitted it contracted with independent contractors to construct the Community. ROH also admits the size and composition of the Community. See ROH’s Answer, ¶¶ 13, 41, and 43. 4. As the developer, ROH owed a statutory duty to the public (to whom it marketed the townhomes), and particularly to the Townhome purchasers (who make up the Association) to comply with the Florida Building Code (“FBC” or “Code”). 5. Further, as the licensed general contractor and permit applicant, ROH 3 owed a common law duty to supervise, direct, and manage the construction services at the Community in a non-negligent manner, which included compliance with the FBC, plans and specifications, industry standards, and in a good and workmanlike manner. 6. The Project was ultimately constructed with numerous Code violations. 7. On November 23, 2020, the Association filed its initial Complaint in this action, which asserts three causes of action against ROH for: (i) Negligence and Vicarious Liability (“Count I”); (ii) Breach of the FBC (“Count II”); and (iii) Breach of Implied Warranties (“Count III”). All Counts relate to the negligent and defective construction of the Community. See Complaint (Doc. No. 2); see also Second Amended Complaint (Doc. No. 506). 8. On or around March 24, 2023, ROH filed its Unopposed Motion for Leave to file its Second Amended Crossclaim Complaint, wherein which it asserted its eleventh affirmative defense alleging that the Association’s claims should be barred or limited to the extent the Association purportedly lacks standing to bring the claims asserted in its Complaint. (Doc. No. 739). 9. On January 19, 2024, ROH filed its Motion arguing, consistent with its twenty-fourth affirmative defense, that the Association’s claims should be barred or limited to the extent the Association purportedly lacks standing to bring the claims for the defects in the roof as asserted in its Complaint. (Doc. No. 923). 4 10. The Association opposes ROH’s twenty-first affirmative defense and Motion for the reasons outlined both above and below. 11. Accordingly, ROH fails to meet its burden because the “court must draw every inference in favor of the non-moving party [the Association] when considering whether a genuine issue of material fact exists. . .” Allen v. Board of Public Educ. For Bibb Cnty., 495 F. 3d 1306, 1313 (11th Cir. 2007) (emphasis added). III. MEMORANDUM OF LAW A. Summary Judgment Standard. Summary judgment is only appropriate where the pleadings, depositions, and affidavits show that there is no genuine issue of material fact, and that the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue of fact is “material” if it is a legal element of the claim under applicable substantive law which might affect the outcome of the case. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); Allen v. Tyson Foods, 121 F.3d 642, 646 (11th Cir.1997). An issue of fact is “genuine” if the record taken as a whole could lead a rational trier of fact to find for the non-moving party. Allen, 121 F.3d at 646. On a motion for summary judgment, the Court must view all the evidence and all factual inferences drawn therefrom in the light most favorable to the non-moving party, and determine whether that evidence could reasonably sustain a jury verdict. Celotex, 477 U.S. at 322-23; Allen, 121 F.3d at 646. While the burden on the movant is great, the opposing party has a duty to present affirmative evidence in order to defeat a properly supported motion for summary Judgment. Anderson, 477 U.S. at 252. 5 Downs v. U.S., No. 06-20861-CIV, 2007 WL 842136 at *3 (S.D. Fla. Mar. 20, 2007). (Emphasis added). Importantly, Fla. R. Civ. P. 1.510 does not immediately shift the burden of disproving an affirmative defense to a nonmovant; that burden remains with ROH until satisfied. On April 29, 2020, the Florida Supreme Court issued Opinion No. SC20-1490, In re: Amendments to Florida Rule of Civil Procedure 1.510, noting that the evidentiary burden that a party must meet at trial is the touchstone that accurately measures whether a genuine issue of fact exists: First, those applying new rule 1.510 must recognize the fundamental similarity between the summary judgment standard and the directed verdict standard. … under both standards, the substantive evidentiary burden of proof that the respective parties must meet at trial is the only touchstone that accurately measures whether a genuine issue of material fact exists to be tried. In re Amendments to Fla. Rule of Civil Procedure 1.510, No. SC20-1490, 6-7 (Fla. Apr. 29, 2021) (emphasis added) (“Amendment”). Thus, while “a moving party that does not bear the burden of persuasion at trial can obtain summary judgment without disproving the nonmovant’s case,” the converse is equally true: a movant with the burden of proof must disprove the nonmovant’s case - here, that there is no genuine issue of material fact as to ROH’s affirmative defense regarding the Association’s purported lack of standing: If the movant bears the burden of persuasion at trial, “that party must support its motion with credible evidence—using any of the materials 6 specified in Rule 56(c)—that would entitle it to a directed verdict if not controverted at trial.” Celotex, 477 U.S. at 331. Any doubt regarding whether a trial is necessary must be resolved in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). United States v. Friedman, No. 15-80407-CIV, 2015 WL 12550904, at *1 (S.D. Fla. July 7, 2015). Because ROH asserts lack of standing as an affirmative defense, they bear the burden of persuasion at trial. Hess v. Philip Morris USA, Inc., 175 So. 3d 687, 694–95 (Fla. 2015) (“The defendant has the burden to prove an affirmative defense.”). Therefore, ROH has the burden of persuasion at trial. Hess v. Philip Morris USA, Inc., 175 So. 3d 687, 694–95 (Fla. 2015) (“The defendant has the burden to prove an affirmative defense.”). Accordingly, ROH has the burden to show that it is entitled to a directed verdict on its affirmative defense of purported lack of standing when all evidence and inferences are drawn in favor of the Association. B. Summary Judgment is Properly Entered Against a Movant Under Fla. R. Civ. P. 1.510(f). Under the newly amended Fla. R. Civ. P. 1.510(f)(1), the Court may “grant summary judgment for a nonmovant.” Under the Florida Supreme Court’s Opinion, a party “that does not bear the burden of persuasion at trial can obtain summary judgment without disproving the nonmovant’s case.” Opinion, pg. 6. “Under Celotex and therefore the new rule, such a movant can satisfy its initial burden of production in either of two ways: ‘[I]f the nonmoving party must prove X to prevail [at trial], 7 the moving party at summary judgment can either produce evidence that X is not so or point out that the nonmoving party lacks the evidence to prove X.” Id., pg. 6-7 (emphasis added). “A movant for summary judgment need not set forth evidence when the nonmovant bears the burden of persuasion at trial.” Id. Thus, it logically follows that where a movant bears the burden of proof at trial (as ROH does here), the nonmovant (Association) can simply point out that the moving party “lacks the evidence to prove” that the Association lacks standing for the roofs and therefore overcomes summary judgment. C. Standing in Florida Following standing principles generally, “[a] plaintiff must demonstrate the existence of an actual controversy between the plaintiff and the defendant in which plaintiff has a sufficient stake or cognizable interest which would be affected by the outcome of the litigation in order to satisfy the requirements of standing.” Matheson v Miami Dade County, 258 So. 3d 516, 519 (Fla. 3d DCA 2018) (citing Warren Tech., Inc. v. Carrier Corp., 937 So. 2d 1141, 1142 (Fla. 3d DCA 2006)). Further, “where a plaintiff is either the real party in interest or is maintaining an action on behalf of the real party in interest, its action cannot be terminated on the ground that it lacks standing.” Kumar Corp. v Nopal Lines, 462 So. 2d 1178, 1183 (Fla. 3d DCA 1985); see also § 720.303(1), Fla. Stat; Fla. R. Civ. P. 1.221. Here, an actual controversy exists between the Plaintiff and ROH as the 8 negligent installation of the roofs, accessories, adjacent components, and related waterproofing elements by ROH and its subcontractors have caused damage to the exteriors that the Association has the right to maintain and repair. IV. ARGUMENT ROH’s Motion must be denied because: (i) the Association is responsible for the maintenance, repair, and replacement of the exteriors of the common areas and townhomes at the Project, including (explicitly) the roofs; (ii) the necessary repair to the exterior walls, roofs, and common areas requires removal and replacement of the improperly installed roofing and related components and improperly constructed adjacent exteriors of the townhomes causing damage to the same; (iii) the Association has, and continues to maintain, repair, and replace the exteriors and roofs of the Project and has incurred, and will continue to incur, damages in doing so; and (iv) as a stranger to the Declaration, ROH cannot challenge the Association’s interpretation of the provisions therein; (2) Section 553.84, Florida Statutes, provides the Association with standing to pursue claims for violations of the Florida Building Code because the Association has been damaged by violations of the Code; and (3) Section 720.303, Florida Statutes, provides the Association with standing because the Association members voted in favor of pursuing this action as a matter of common interest. As such, this Court should deny ROH’s Motion. 9 A. The Association is required to maintain, repair, and replace the exteriors of the Common Property The express language of the Declaration requires the Association to maintain, repair, and replace the exteriors of the Common Property 1 within the Community, including the townhomes “[f]or the purpose of enhancing and protecting the value, attractiveness, and desirability of the residential units.” See Composite Exhibit A 2, Ex. A-1, p.7. Further, the Association’s enumerated responsibility covers “enforcement of rules and maintenance, repair and replacement of the Common Areas3, with funds made available by the Association for such purposes.” See Id., p. 10 at ¶ 3.1. Multiple provisions of the Declaration provide that the Association is responsible for the maintenance, repair, and replacement of the exteriors of the townhomes, including the roofs. See Composite Ex. A, A-1, p.1, sections 2, 3.1, 4, 5, 6, 7, 9, 11; A-2, section 2. The roofs are part of the exteriors of the Common Areas and Common Property for which the Association is responsible for the maintenance and repair. See Ex. A-1, A-2, and A-4. This is evidenced by (1) the previously performed and continuing maintenance, repairs, and replacement of the roof leaks 1 The Master Declaration, which is incorporated into the Declaration, defines “Common Property” as all personal property acquired by the Association and easements reserved on the plat of the Property or conveyed to the Association. The Master Declaration also states explicitly, “The Association shall assume the liability and provide for the perpetual maintenance of all walls and drainage facilities.” Ex. A-2, p.2 (c) (Emphasis added). 2 Comprised of Exhibit A-1, Declaration of Covenants and the Restrictions of the Villas at Emerald Lake; Exhibit A- 2, Declaration of Covenants and Restrictions Emerald Lake Poinciana; Exhibit A-3, First Amendment to the Declaration of Covenants and Restrictions of the Villas at Emerald Lake; and Exhibit A-4, Second Amendment to the Declaration of Covenants and Restrictions of the Villas at Emerald Lake. 3 The Declaration defines “Common Area” as all real property now and hereafter owned by the Association or dedicated for use or maintenance by the Association or its members. Ex. A-1, p.7 ¶ 1.5. 10 and reserve funding by the Association for the repair and replacement of the roofs at the townhomes; and (2) the Association’s expert’s opinions that the roofs, as components of the exterior systems, must be removed and replaced to correct the defective installation and repair the damage to the exteriors of the buildings. See, Records of Repairs, Exhibit C 4; see also Composite Exhibit B, Deposition Testimony of Felix Martin, Vol I, pp. 183:25-188:6. The Motion should be denied. i. The Association is responsible for the maintenance, repair, and replacement of the exteriors of the Common Property, including the roofs. The Declaration enumerates multiple provisions that explicitly place the responsibility with the Association for the maintenance of the roofs of the townhomes. See generally, Composite Ex. A. First, Article V, Section 2 of the Master Declaration states that: 4 The records of these temporary repairs were verified by the Association’s corporate representative accompanying testimony that the Association has taken on the financial burden of these temporary repairs. See Ex. D, pp.76:9-77:2. 11 See Ex. A-2, Art. V., sec 2. This section requires the Association to assess its members for the “improvement and maintenance of properties, services, and facilities, which are devoted to the purposes and related to the use and enjoyment of the Common Property and of the homes situated on the Property.” Id. Next, the Declaration specifically enumerates the Association’s responsibility for the protection, maintenance, repair, and replacement to the of the Common Areas . . . [and] all exterior painting of buildings, and normal wear and tear of the roof. Ex. A-3, sec. 7.1. The Declaration further gives the Association to take on or enforce any maintenance and repair requirements of the owners. Ex. A-1, section 7.1 and 11. Lastly, the Declaration’s Second Amendment specifically provides that the Association is responsible for, amongst other things, “any structural policy of insurance purchased by the Association with respect to the Living Units, and the Association shall levy Assessments to each Owner in connection with the foregoing.” See Ex. A-4, section 4.2. Here, the Association’s claims concern the exteriors of the Community, including the roofs – which the Association explicitly is responsible for. Therefore, the Association has the requisite standing to bring claims for the roof. The Motion should be denied. 12 ii. The roofs are part of the building exteriors. In furtherance of its investigation of the construction defects throughout the Community, the Association retained expert, Marcon Forensics, LLC (“Marcon”), a building exterior and construction forensic investigation company with extensive experience performing evaluations and repairs to structures and building exteriors. See generally, Ex. B, Marcon conducted an extensive investigation of the conditions of the townhomes at the Project, including a visual examination of all 76 townhomes at issue and invasive testing at numerous locations. Id. at Vol I, p. 48:24; Marcon identified numerous exterior building defects which correlate with water intrusion related damages. See generally, Ex. B. These exterior defects include the improper installation of stucco, windows and doors, flashings, roofing, and weather resistive barrier. Id. Marcon concluded that defects and deficiencies in the exteriors of the Project violate the Florida Building Code, requiring that the exterior walls provide a weather-resistant exterior wall envelope, including properly waterproofed and constructed roofs. Id. at Vol. I, pp. 183:25-188:6. According to Marcon, to correct the deficiencies and defects in the exterior walls of the Project and to access the damaged areas of the same, the roofs, as part of the exterior assemblies, must be removed and replaced to properly repair the damage related to the improper construction of the same and to properly flash and integrate the roofs with the rest of the building exterior, as required by the Florida 13 Building Code. Id. In short, to perform the repairs necessary to address the construction defects in the exteriors, including the defective roof and roof accessory installation, the Association must remove and perform repairs to the roofs to properly repair the damaged exterior walls and properly integrate the roofs with the adjacent exterior wall components. Id. Accordingly, the roofs, as a part of the Project’s exteriors, are included within the Association’s responsibility to maintain, repair, and replace the exteriors of the Community. ROH provided no evidence to dispute Marcon’s opinions. Therefore, the Motion should be denied. iii. ROH fails to consider all applicable provisions of the Declaration. In the Motion, ROH conveniently fails to address all relevant portions of the Declaration. See generally, Motion. Specifically, ROH argues that the Association is responsible for roofs only to address “normal wear and tear;” and that under the same amendment, only the “owners ‘are responsible for repair and replacement of all roof damaged (sic) caused by anything other than normal than wear and tear.’” Motion, p. 5. ROH attempts to argue that pursuant to these provisions, the Association is not responsible for the maintenance and repair of the roofs and thus lacks standing for these claims. Motion, p. 12. However, this narrow reading of the Declaration fails to accurately define the true breadth of the Association’s responsibilities as set forth in Composite Ex. A above. ROH fails to address the portions of the Declaration that provide the 14 Association with maintenance, replacement, and repair responsibilities for the Community, including the roofs – for the welfare of the Community. As such, ROH’s incomplete reading of the Declaration improperly renders the provisions that do provide the Association with rights and responsibility for the maintenance, repair, and replacement of the roofs at the Community meaningless. See Exhibit A-3. See Super Cars of Miami, LLC v. Webster, 300 So. 3d 752, 755 (Fla. 3d DCA 2020) (“A cardinal principal of contract interpretation is that the contract must be interpreted in a manner that does not render any provision of the contract meaningless.”). ROH’s reading of the Declaration cannot be the correct interpretation of the Declaration’s language. Further, ROH relies on an incorrect interpretation of the First Amendment of the Declaration, describing a limited amendment to sections 7.1 and 7.2, asserting that these amended provisions specifically disallow the Association from performing maintenance, repair, or responsibility for roof repairs with the exception of “normal wear and tear.” See Motion, p. 5. Amended sections 7.1 and 7.2 also do not define “normal wear and tear,” what is “other than normal wear and tear,” and what conditions would warrant intervention from the Association. See Ex. A-3, p. 1. The Association testified that, even in using “useful life” as a determining time period for “normal wear and tear,” that “a useful life cycle by a manufacturer installer should be, would be mitigated or destroyed if it wasn’t properly installed.” 15 Ex. D, Vol. II, p. 165:13-15. Such is the case here, and accordingly, the Association is well within its right to bring claims for the improper and defective installation of the roofs. This evidence alone illustrates why ROH’s Motion should be denied. iv. ROH lacks standing to challenge the Association’s interpretation of the Governing Documents, or to assert its own interpretation of the terms contained within. Notwithstanding the factually dispositive nature of the Governing Documents conferring standing, ROH’s standing defense also fails because it is not a party to those Governing Documents. As such, ROH is prohibited from advancing its own interpretation of the Governing Documents because it is a stranger to them. Florida law is clear that “[t]he intent of the parties to a contract should govern the construction of the contract.” Am. Home Assurance Co. v. Larkin Gen. Hosp., Ltd., 593 So. 2d 195, 197 (Fla. 1992). The Declaration is a contract between the Association and its members. As a stranger to the Declaration, ROH does not have standing to challenge the Association’s interpretation, or to assert its own interpretation (let alone to invoke the parol evidence rule, as it tries to do). See Companion Prop. & Cas. Ins. Co. v. Category 5 Mgmt. Grp., LLC, 189 So. 3d 905, 908 (Fla. 1st DCA 2016) (a party may only advance constructions of contracts to which it is a party); see also Pittman v. Providence Washington Ins. Co., 394 So. 2d 223, 224 (Fla. 5th DCA 1981) (finding “[t]he parol evidence rule . . . cannot be invoked by a stranger to [a] contract”); see Beacon Park Phase II, supra, at ¶ 16. 16 As in Beacon Park Phase II, “[t]he Association is entitled to exercise its ‘judgment’ as to implementing and levying assessments for the ‘general benefit of its members’” and ROH “lack[s] standing to advance a difference construction of the Declaration.” See Beacon Park Phase II, supra, ¶¶ 15-16 (citing Companion Prop. & Cas. Ins. Co., supra, at 908; Pittman, supra, at 224; and Lake Forest Master Cmty. Ass’n, Inc. v. Orlando Lake Forest Joint Venture, 10 So. 3d 1187, 1195 (Fla. 5th DCA 2009) (acknowledging developer defendant would lack standing to challenge the legitimacy of an association vote if not a member). ROH’s Motion should be denied. v. The Association has incurred and will continue to incur damages associated with repairs required as a result of the construction defects. In accordance with the terms within the Declaration, the Association has performed roof repairs at the Project, including addressing roof damage and roof leaks. See Ex. D, pp. 76:9-77:2 and Composite Ex. C. ROH attempts to assert that, as the Association and its representatives have advised the owners in the past that the owners must maintain their own insurance and perform their own roof repairs, the Association takes no responsibility and holds no ownership over the roofs at the Community. Motion, p. 6. This is an inaccurate inference made from the testimony provided. The Association’s representative further testified that the Association’s maintenance responsibilities would be reviewed and determined on a case-by-case basis and that they rely on the Association’s legal counsel and the governing 17 documents to determine owner versus Association responsibility. Ex. D, Vol. II, pp.162:14-163:22. The Association’s responsibility to maintain the exteriors of the townhomes does not override an owner’s right to make changes or repairs to their own lot. In fact, any roof repairs that do occur require approval before any permitted work is performed. Ex. A-1, section 5. ROH’s Motion should be denied. B. The Association also has standing under the express language of section 553.84, Florida Statutes, to pursue claims for building code violations In addition, section 553.84, Florida Statutes provides as follows: Notwithstanding any other remedies available, any person or party, in an individual capacity or on behalf of a class of persons or parties, damaged as a result of a violation of this part or the Florida Building Code, has a cause of action in any court of competent jurisdiction against the person or party who committed the violation. § 553.84, Fla. Stat. (emphasis added). As set forth in detail above, the Association is responsible for maintenance and repairs of the exteriors of the Community. The testimony from Marcon shows that the Project has been damaged from Florida Building Code violations caused by the improper installation of the roofs, flashing, and adjacent elements at the Community. See generally, Ex. B. ROH was the developer and general contractor for the Project. Accordingly, the Association has suffered harm as a result of the Florida Building Code violations committed by ROH and its subcontractors and has standing to sue them to recover those damages. The Motion should be denied. 18 C. The Association has standing to pursue claims on behalf of its members, who voted in favor of having the Association initiate this action under section 720.303, Florida Statutes The relevant text of section 720.303(1), Florida Statutes, provides that: The powers and duties of an association include those set forth in this chapter and, except as expressly limited or restricted in this chapter, those set forth in the governing documents. After control of the association is obtained by members other than the developer, the association may institute, maintain, settle, or appeal actions or hearings in its name on behalf of all members concerning matters of common interest to the members, including, but not limited to, the common areas; roof or structural components of a building, or other improvements for which the association is responsible; mechanical, electrical, or plumbing elements serving an improvement or building for which the association is responsible; representations of the developer pertaining to any existing or proposed commonly used facility; and protesting ad valorem taxes on commonly used facilities. The association may defend actions in eminent domain or bring inverse condemnation actions. Before commencing litigation against any party in the name of the association involving amounts in controversy in excess of $100,000, the association must obtain the affirmative approval of a majority of the voting interests at a meeting of the membership at which a quorum has been attained. (emphases added). The Association’s membership voted to approve this action as a matter of common interest, as required by section 720.303, Florida Statutes. See Ex. D. Vol. II, pp. 212:6-15; and 226:3-227-4. The majority vote approving this action in compliance with section 720.303, Florida Statutes, confirms that the Association can bring this action as a matter of common interest. At a minimum, the vote demonstrates a genuine dispute of material fact as to whether the negligent installation of the roofs is a matter of common interest to the Association. Thus, the 19 Motion should be denied. i. The interpretation of section 720.303, Florida Statutes, shows that the Association has standing to pursue any claim which its members determine is a matter of common interest. A review of section 720.303(1), Florida Statutes, reveals the legislature’s intent to provide a non-exclusive list of matters of common interest. Florida courts have been clear that when a statute uses the phrase, “including but not limited to,” the legislature has signified that the statute or rule contains only a partial list. See Alligator Enterprises, Inc. v. General Agent’s Ins. Co., 773 So. 2d 94, 95 (Fla. 5th DCA 2000) (holding use of “including without limitation”—or some derivation thereof—indicates an incomplete, rather than complete, list). The examples contained in section 720.303, Florida Statutes, (describing examples of matters of common interest) are not exclusive of other matters not specifically listed. To conclude otherwise ignores the plain text of section 720.303, Florida Statutes, which contains the phrase, “including but not limited to,” before providing a list of several, non-exhaustive examples. Accordingly, the Association’s right to sue for claims relating to common areas and property maintained by the Association is not contradicted by finding that the Association has the general power to sue for matters of common interest. Further, “no part of a statute, not even a single word, should be ignored, read out of the text, or rendered meaningless, in construing the provision.” Scherer v. 20 Volusia County Dept. of Corr., 171 So. 3d 135, 139 (Fla. 1st DCA 2015). In weighing the effect of a statute, courts must remember that “the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render a part of a statute meaningless.” State v. Goode, 830 So. 2d 817, 824 (Fla. 2002). Even before the enactment of section 720.303, Florida Statutes (2003), homeowners’ associations in Florida were entitled to maintain actions for defects in common areas and for property the association was responsible for maintaining. See Strathmore Gate-E. at Lake St. George Homeowners’ Ass’n Inc. v. Levitt Homes, Inc., 537 So. 2d 657, 658 (Fla. 2d DCA 1989). This Court should deny the Motion. ii. The Association’s members and its Board determined that this action is of “common interest” to the members. The Association’s action against ROH and its subcontractors follows the express intent of the legislature to grant standing to the Association for matters of common interest as decided by a membership vote. See Florida Staff Analysis of H.B. 861, 4/16/2003. The Association’s membership voted to approve this action as a “matter of common interest”, as required by section 720.303, Florida Statutes. See Ex. D. Vol. II, pp. 212:6-15; and 226:3-227-4. The majority vote approving this action in compliance with section 720.303, Florida Statutes, confirms that the Association can bring this action as a matter of common interest. At a minimum, the vote demonstrates a genuine issue of material fact as to whether the negligent installation of all windows and siding at the Community is a “common interest” to 21 the Association. Therefore, ROH’s Motion should be denied. iii. Florida courts have broadly interpreted the phrase “matters of common interest” in favor of standing to homeowners’ associations. Florida courts have consistently interpreted the phrase “matters of common interest” broadly to allow associations to sue on behalf of their members, finding that damages to automobiles from leaking rusted water, and defects contained within the units were found to be matters of common interest. Charley Toppino & Sons, Inc. v. Seawatch at Marathon Condo. Ass’n, Inc., 658 So. 2d 922, 923 (Fla. 1994); see also Allied Tube & Conduit Corp. v. Latitude on River Condo. Ass'n, Inc., 3D19- 2044, 2020 WL 3444902, at *1 (Fla. 3d DCA June 24, 2020). In Seawatch, the Third District Court of Appeal stated that “the common interest provision of the rule has been interpreted to permit a class action by the association for a construction defect located physically within a unit, rather than in the common elements, if the defect is prevalent throughout the building.” 610 So. 2d 470, 473 (Fla. 3d DCA 1992), approved, 658 So. 2d 922 (Fla. 1994). Since Seawatch, courts have held that because a condominium association has standing to pursue claims for property it does not own or maintain, a homeowners’ association of single-family residences would have the same authority. It is no accident that the language in § 718.111, providing standing for condominium associations, and section 720.303, Florida Statutes, providing standing for homeowners’ associations, are similar. Accordingly, Florida courts have consistently 22 found that homeowners’ associations, under section 720.303, Florida Statutes, have standing to pursue claims relating to property not owned or controlled by the association, as long as the matter is one of common interest to the members. See Homeowner’s Ass’n of Overlook, Inc. v. Seabrooke Homeowners’ Ass’n, Inc., 62 So. 3d 667, 669 (Fla. 2d DCA 2011) (holding a homeowners’ association may assert claims as matters of common interest where no “common element” under the declaration is at issue); see also Maronda Homes, Inc. of Florida v. Lakeview Reserve Homeowners’ Ass’n, Inc., 127 So. 3d 1258, 1261 (Fla. 2013) (holding, under section 720.303, Florida Statutes, an association does not lack standing to seek recovery of damages to individual homes caused by defective construction of roadways and drainage systems because an association has the right to bring claims on behalf of its owners for a matter of common interest). Here, as voted on and approved by the owners/members, the Association and its members share a “common interest” in repairing the defectively installed roofs. iv. Nearly identical Motions for Summary Judgment on nearly identical issues were recently denied in this Court, the Fourth Judicial Circuit (Duval County) and Seventh Judicial Circuit (St. Johns County) Four motions for summary judgment considering similar issues were recently denied in this Court, the Fourth Judicial Circuit, and the Seventh Judicial Circuit. The Orders from all four cases are attached as Composite Exhibit E. This Court recently held in both Beacon Park Phase II Homeowners 23 Association, Inc. v. D.R. Horton, Inc., et al, Case No.: 2020-CA-007042-O, Filing #153978465 (Fla. 9th Cir. July 25, 2022); and 101 Eola Condo. Ass’n, Inc. v. BA Eola, Inc., et al., Case No.: 2017-CA-009778, Filing #13284037 (Fla. 9th Cir. August 17, 2021), this Court correctly ruled that both a homeowner and condominium association had standing to bring claims for defective construction of the communities despite limitations in their corresponding Declarations. Id. In doing so, this Court held that, under Fla. R. Civ. P. 1.221 an action must only “concern” a matter of common interest rather than “involve” a matter of common interest; and, that an Association has agency to exercise its judgment to determine that its governing documents obligate it to perform maintenance, repairs, and replacements (where necessary). Id. Similarly, the Fourth Judicial Circuit Court held in Flagler Station Homeowners’ Association, Inc. v. Pulte Home Corp., et al., Case No.: 16-2017-CA- 003831, that the “responsibility of the unit owners (to maintain the windows) does not foreclose the Association from assuming responsibility for repairs to or replacement of windows, particularly when the alleged need for repairs and replacements all stem from a common cause and when the reason for the repairs and replacements arises from the integration and sealing of the windows with the exterior structure of the buildings” and that when the members of the Association voted to authorize the Association to bring the claims “recognized that the claims alleged are 24 of common interest to the Association and its members and that the Association had assumed responsibility for the subject matter of the claims.” Id. at *3 Lastly, in Islander Townhome Homeowners Association, Inc. v. KB Home Jacksonville, LLC, et al., Case No.: CA19-0670, the Seventh Judicial Circuit Court also denied a similar motion. The court found that the Islander association’s governing documents created its responsibility to maintain the exterior walls of the townhomes and, as part of that obligation, the association interpreted its responsibility to include maintaining, repairing, and replacing windows; and that the association’s vote to approve the litigation under section 720.303, Florida Statutes, demonstrated “a genuine issue of material fact as to whether the negligent installation of the windows [was] a matter of common interest to the Association.” Id. at *4-6. Due to the foregoing, the Association was held to hold “a sufficient stake or cognizable interest which would be affected by the outcome of the litigation in order to satisfy the requirements of standing.” Id. at *6. Here, the issues are nearly identical to those in 101 Eola, Beacon II, Flagler, and Islander and, for the same reasons, ROH’s Motion should be denied. V. CONCLUSION ROH’s Motion must be denied. As lack of standing is an affirmative defense put forth by ROH, ROH bears the burden of proving no genuine dispute of material fact exists as to the Association’s lack of standing. ROH failed to do so. For all of 25 the reasons outlined above, the record reflects a genuine issue of material fact, that different inferences can reasonably be drawn from the facts, and as such, the doubt as to the Association’s lack of standing must be resolved against the ROH. Therefore, the ROH’s Motion must be denied. DATED: This 21st day of February, 2024. 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. 100311 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. 26 CERTIFICATE OF SERVICE I certify that a true copy of the foregoing has been filed via the Florida Courts E-Filing Portal on February 21, 2024. /s/ Kasey L. Joyce Kasey L. Joyce, Esq. 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 beth.tobey@tampalaw.org rleavengood@carltonfields.com mramos@carltonfields.com Counsel for Defendant, Imperial nbonilla@carltonfields.com Building Corporation ejohnson@carltonfields.com krick@carltonfields.com Counsel for Defendant, Royal Oak Homes, LLC 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 27 eservice@milnelawgroup.com DENISE M. ANDERSON ASHLEY M. MATTINGLY Counsel for Defendant, Weathermaster Butler Weihmuller Katz Craig LLP Building Products, Inc. 400 N. Ashley Drive, Suite 2300 Tampa, FL 33602 (813) 281-1900 danderson@butler.legal amattingly@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 Defendant, Weintraub Inspections & Forensics, Inc. n/k/a Weintraub Engineering and Inspections, Inc. JAYNE ANN PITTMAN BRUCE R. CALDERON NATALIE C. FISCHER ALICIA Z. GROSS 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 28 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, Advanced breisch@milbermakris.com Wrapping and Concrete Solutions of kmcdowell@milbermakris.com Central Florida, Inc. sskowronski@milbermakris.com Counsel for Defendant/Cross- Defendant, Brown + Company Architecture, Inc. JENNIFER MILLER BROOKS 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 jmiller@hamiltonmillerlaw.com cebanks@gspalaw.com ktsiring@hamiltonmillerlaw.com mcoleman@gspalaw.com jcasaccio@hamiltonmillerlaw.com Counsel for Third-Party Defendant, Counsel for Defendant/Cross- Helberg Enterprises,