Request,Application: VILLAS AT EMERALD LAKE HOMEOWNERS ASSOCIATION INC vs. ROYAL OAK HOMES LLC

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                                Filing # 193721041 E-Filed 03/11/2024 11:48:34 AM



                  IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
                          IN AND FOR OSCEOLA COUNTY, FLORIDA

          VILLAS  AT                   EMERALD                LAKE
          HOMEOWNERS                 ASSOCIATION,            INC., a
          Florida not for profit corporation,

                    Plaintiff,

          v                                                              CASE NO.: 2020-CA-002942-ON

          ROYAL           OAK HOMES,            LLC, a Florida           ROYAL OAK HOMES, LLC’S
          limited        liability   company;       ADVANCED               THIRD REQUEST FOR
          WRAPPING                  AND    CONCRETE                          JUDICIAL NOTICE
          SOLUTIONS              OF CENTRAL FLORIDA,
          INC., a Florida corporation; DON KING’S
          CONCRETE, INC., a Florida corporation;
          HUGH           MACDONALD         CONSTRUCTION,
          INC.,      a    Florida    corporation;
                                            IMPERIAL
          BUILDING             CORPORATION,  a Florida
          corporation;        PREMIER PLASTERING OF
          CENTRAL  FLORIDA, INC.                     n/k/a     TGK
          STUCCO, INC., a Florida                    corporation;
          WEATHERMASTER                              BUILDING
          PRODUCTS, INC., a Florida corporation;
          WEINTRAUB       INSPECTIONS          &
          FORENSICS, INC. n/k/a WEINTRAUB
          ENGINEERING    AND   INSPECTIONS,
          INC., a Florida corporation; THE DIMILLO
          GROUP, LLC, a Florida limited liability
          company;     WOLF’S    IRRIGATION      &
          LANDSCAPING,        INC.,   a    Florida
          corporation;   SUMMERPARK      HOMES,
          INC.,     a     Florida    corporation,    BROWN         +
          COMPANY                ARCHITECTURE,          INC.,        a
          Florida corporation;
          EXPERT             PAINTING         &      PRESSURE
          WASHING,            INC., a Florida corporation,

                    Defendants.


         135306701.1
ROYAL OAK HOMES, LLC, a Florida
 limited liability company,

        Crossclaim Plaintiff,

 v



 ADVANCED     WRAPPING     AND
 CONCRETE SOLUTIONS OF CENTRAL
 FLORIDA,        INC.,   a   Florida    corporation;
 DON KING’S CONCRETE, INC., a Florida
 corporation; HUGH       MACDONALD
 CONSTRUCTION,     INC.,    a   Florida
 corporation; IMPERIAL      BUILDING
 CORPORATION,            a   Florida    corporation;
 PREMIER PLASTERING OF CENTRAL
 FLORIDA, INC. n/k/a TGK STUCCO, INC.,
 a Florida corporation; WEATHERMASTER
 BUILDING        PRODUCTS,        INC.,    a Florida
 corporation, WEINTRAUB            INSPECTIONS
 & FORENSICS, INC. n/k/a WEINTRAUB
 ENGINEERING     AND     INSPECTIONS,
 INC., a Florida corporation;  WOLF’S
 IRRIGATION & LANDSCAPING, INC., a
 Florida corporation; BROWN            + COMPANY
 ARCHITECTURE,       INC.,     a   Florida
 corporation; EXPERT       PAINTING      &
 PRESSURE WASHING, INC., a Florida
 corporation,

              Crossclaim Defendants.
                                              /

 WEATHERMASTER                            BUILDING
 PRODUCTS, INC., a Florida Corporation,

        Third-Party Plaintiff,



135306701.1
v



 ALL GLASS          INSTALLATION              COPRP., a
 Florida corporation; CASEY      HAWKINS
 GLASS, INC., a Florida corporation; DEAN
 NESBIT, LLC, a Florida              limited liability
 company;  HELBERG                   ENGERPRISES,
 LLC,      a Florida    limited   liability    company;
 HOBBIT          WINDOWS,         LLC,        a Florida
 limited liability company;                         T&M
 CONSTRUCTION OF SANFORD,                         INC., a
 Florida corporation; WELL                         DONE
 WINDOWS, INC., a Florida corporation;
 and WELL HUNG              WINDOWS           & DOORS,
 LLC, a Florida limited liability company,

        Third-Party Defendants.
                                                   /

                             ROYAL OAK HOMES, LLC’S
                       THIRD REQUEST FOR JUDICIAL NOTICE

        Defendant/Crossclaim         Plaintiff,        Royal   Oak   Homes,     LLC   (‘Royal     Oak”),

pursuant      to Sections   90.202(9),    90.202(12),          and 90.203     of the Florida    Statutes,

hereby requests this Court take judicial notice of the document attached hereto as

Exhibit A.

        Section 90.202(6), Florida Statutes, provides that a court may take judicial

notice of “[rJecords of any court of this state or of any court of record of the United

States or of any state, territory, or jurisdiction of the United States.” Fla. Stat. §

90.202(6). Further, Section 90.202(12), Florida Statutes, provides that a court may

take judicial notice of “[flacts that are not subject to dispute because they are capable



135306701.1
of accurate and ready determination by resort to sources whose accuracy cannot be

questioned.” Fla. Stat. § 90.202(12).
Finally, Section 90.203, Florida Statutes, states:

                  A court shall take judicial notice of any matter in Section
                  90.202 when a party requests it and: (1) Gives each
                  adverse party timely written notice of the request, proof of
                  which is filed with the court, to enable the adverse party to
                  prepare to meet the request. (2) Furnishes the court with
                  sufficient information to enable it to take judicial notice of
                  the matter.

Fla. Stat. § 90.203.

       Accordingly,       Royal     Oak   requests   this   Court   take judicial   notice   of the

following document attached hereto as Exhibit A:

              e   Order Denying Defendant D.R. Horton, Inc.-Jacksonville’s Motion in
                  Limine No. 11 to Preclude Evidence and/or Testimony of Plaintiff’s
                  Experts W. Ronald Woods and Bryan J. Busse and Incorporated
                  Memorandum of Law and Motion in Limine No. 10 to Exclude
                  Evidence of Damages or Cost of Repair Based upon Extrapolation,
                  Herons Landing Condominium Association of Jacksonville, Inc. v. D.R.
                  Horton, Inc.-Jacksonville, et al., No. 2013-CA-005882 (Fla. Cir. Ct.
                  Apr. 14, 2016).
       The above-referenced order issued by a Florida circuit court is a Public Record

that can easily be verified for accuracy. Simply stated, the above-referenced exhibit

contains information that is codified and not subject to dispute. Additionally, Royal

Oak has complied with the requirements of Section 90.203, Florida Statutes. As

such, Royal Oak’s request for judicial notice should be granted.

       WHEREFORE,             Royal Oak hereby requests this Court take judicial notice of


135306701.1
the Florida trial court order that is attached as Exhibit A.

Dated: March 4, 2024                            Respectfully submitted,

                                                /s/ J. Michael Walls
                                                James Michael Walls
                                                Florida Bar No. 706272
                                                Luis Prats
                                                Florida Bar No. 329096
                                                Robin H. Leavengood
                                                Florida Bar No. 0547751
                                                Fiona E. Foley
                                                Florida Bar No. 118668
                                                Alexa M. Nordman
                                                Florida Bar No. 1025863
                                                CARLTON FIELDS, P.A.
                                                4221 W. Boy Scout Boulevard
                                                Tampa, FL 33607-5780
                                                Telephone: (813) 223-7000
                                                Facsimile: (813) 229-4133
                                                mwalls@carltonfields.com
                                                Iprats@carltonfields.com
                                                rleavengood@carltonfields.com
                                                anordman@carltonfields.com
                                                slambe@carltonfields.com
                                                ffoley@carltonfields.com

                                                Counsel   for Royal Oak Homes, LLC

                           CERTIFICATE OF SERVICE

       I HEREBY CERTIFY       that on March 8, 2024, the foregoing was electronically
filed with the Clerk of the Court by using the E-filing Portal, which will
electronically serve this document to all registered counsel of record.

                                                /s/ J. Michael Walls
                                                Attorney




135306701.1
EXHIBIT
  "A"
Filing # 40251724 E-Filed 04/14/2016 10:01:29 AM


                                                                IN THE CIRCUIT COURT OF THE
                                                                FOURTH JUDICIAL CIRCUIT IN AND
                                                                FOR DUVAL COUNTY, FLORIDA

                                                                CASE NO.:   2013-CA-005882
                                                                DIVISION:   CV-E
          HERON’S LANDING CONDOMINIUM
          ASSOCIATION OF JACKSONVILLE, INC.,
          a Florida non-profit corporation,
                        Plaintiff,

          vs.


          D.R. HORTON, INC.          — JACKSONVILLE,
          a foreign corporation,      ESPOSITO, CHEEK &
          ASSOCIATES, INC.,          a Florida corporation,
          FRED R. CHEEK, an           individual, JAX APEX
          TECHNOLOGY,        INC., a Florida corporation,
          and MICHAEL       KOZLOWSKI, an individual,
                        Defendants.

          D.R. HORTON, INC. — JACKSONVILLE, a
          foreign corporation,
                         Third-Party Plaintiff,
          VS.
          ARCADIS    G&M,    INC., a Delaware
          corporation; BURTON         PAINT AND
          COATINGS, INC., fka BURTON PAINT,
          INC., a Florida corporation; COLLIS
          ROOFING, INC., a Florida corporation; et. al.,
                        Third-Party Defendants.

          PREMIER WINDOWS & CABINETS, INC.
                    Fourth Party Plaintiff

          VS.


          SEAN HENDERSON             INSTALLATIONS, INC;
          PRIORITY WINDOWS & GLASS, INC.; DO
          WHAT CONSTRUCTION, INC.; AND
          ROBERT M. SPIRAKIS d/b/a SPIRAKIS, INC.
                    Fourth Party Defendants



                                                      Page 1 of 6




FILED: DUVAL COUNTY, RONNIE FUSSELL, CLERK, 04/14/2016 10:54:10 AM
ORDER DENYING DEFENDANT D.R. HORTON, INC.- JACKSONVILLE’S
         MOTION IN LIMINE NO. 11 TO PRECLUDE EVIDENCE AND/OR
          TESTIMONY OF PLAINTIFF’S EXPERTS W. RONALD WOODS
        AND BRYAN J. BUSSE AND INCORPORATED MEMORANDUM OF
         LAW AND MOTION IN LIMINE NO. 10 TO EXCLUDE EVIDENCE
       OF DAMAGE OR COST OF REPAIR BASED UPON EXTRAPOLATION

      Defendant/Third-Party Plaintiff, D.R. Horton, Inc.-Jacksonville (hereafter “D.R. Horton’),

has filed its Motion In Limine No. 11 To Preclude Evidence And/Or Testimony Of Plaintiff's

Experts     W. Ronald   Woods and Bryan J. Busse and Incorporated Memorandum            of Law, and

D.R. Horton, Inc.-Jacksonville's Motion In Limine No. 10 to Exclude Evidence Of Damage or

 Cost of Repair Based Upon Extrapolation.         After considering said motions, hearing argument

 of counsel and live testimony from W. Ronald Woods and Bryan Busse, reviewing applicable

 deposition testimony, and otherwise being fully advised in the premises, the Court DENIES

 D.R. Horton’s motions, WITH QUALIFICATION based on the following grounds:

          As an initial matter, the court denies the Plaintiffs arguments that the recent adoption of

the Daubert standard in §90.702, Fla. Stat. (2016), by the legislature violates the separation of

powers provisions of the Florida Constitution because it concerns matters of procedure that are

reserved exclusively for the judicial branch.    The court further denies Plaintiffs argument that

the Daubert standard does not apply retroactively to a case such as this that was filed before the

legislature amended §90.702.       While these issues are currently under review by the Florida

Supreme Court, the intermediate appellate courts have all directed that the Daubert standard

applies and it applies retroactively to all cases.    See Perez v. Bell South Telecommunications,

Inc., 138 So0.3d 492, 496-98 (Fla. 3d DCA       2014) (Holding that the legislative adoption of the

Daubert standard in §90.702, Fla. Stat., applies retroactively to all expert witness testimony).

This trial court is bound by those decisions and there is no need to engage in any further analysis.




                                              Page 2 of 6
Additionally, the Plaintiffs objection to the timeliness of these motions is overruled.

“The failure to timely raise a Daubert challenge may result in the court refusing to consider the

untimely motion.” Booker v. Sumter County Sheriff's Office/North American Risk Services, 166

So.3d 189, 193 (Fla. 1st DCA 2015).          In this case, the court has used its discretion to carve out

time to hear all Daubert challenges even though they were filed well after the deadline for such

motions that was contained in the court’s pretrial case management orders.                  Plaintiff has been

able to adequately prepare and defend against the motions and the court found that it would be

appropriate to go forward and rule on the merits of Defendant’s motions.

        As to the merits of Defendant’s request to strike the expert testimony of Mr. Woods and

Mr. Busse, Plaintiff met its burden to demonstrate by a preponderance of the evidence that the

expert testimony from these witnesses complies with the requirements of §90.702.                   Booker, 166

So.3d at 193, n.1.      (Recognizing that the proponent of evidence has the burden of proof to

demonstrate its admissibility by a preponderance of the evidence).                The legislatively imposed

shift from the Frye standard to the Daubert'standard under this statute expressly provides for the

admission of scientific, technical, or other specialized testimony from a qualified expert witness

if it assists the trier of fact in determining a fact in issue and:

         1) The testimony is based upon sufficient facts or data;

        2) The testimony is the product of reliable principles and methods; and

        3) The witness has applied the principles and methods reliably to the facts of the case.

Plaintiffs evidence and testimony satisfied all three elements for admissibility under the statue.

        The thrust of Defendant’s arguments is that both experts have rendered an opinion as to

the cause of moisture intrusion in some of the Heron’s landing condominium buildings, and

resulting damages,     based on test results from a         statistically unreliable    sample of only three

* Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

                                                  Page 3 of 6
window       units.   In reaching their opinions, Mr. Woods            and Mr. Busse testified that they

conducted the American Society for Testing and Materials (ASTM)                 E1105 test on only three

windows within the entire complex.       The E1105 test is a destructive testing protocol designed to

determine moisture intrusion in and around windows when they are exposed to various wind

pressures.


         If the testimony of these experts was            based   solely on the E1105     test results, then

Defendant’s motions would certainly have merit.                However, the expert testimony from Mr.

Woods and Mr. Busse was based upon more than simply these three tests.                   Working together,

they reviewed the plans, drawings, and specifications for the entire project and observed that the

various buildings were all designed to be constructed in a similar manner.                  Both witnesses

visually inspected the exterior of all buildings from the ground floor to determine their condition

with respect to cracking stucco and other possible evidence of water intrusion.              They reviewed

the deposition testimony of all those that were involved in the design and construction of the

various buildings.      After learning about the construction means and methods used in the entire

project and visually observing       areas    of stucco     cracking   and moisture    intrusion   at various

locations     in some    of the condominium       units, they conducted       the E1105      test to merely

corroborate their opinions as to the cause of the moisture intrusion.           The court has no trouble

concluding that their opinions are based on sufficient facts or data.

         The testimony from both experts is also the product of reliable principles and methods

and both experts have reliably applied those principles and methods to the facts in this case.

Specifically, Mr. Woods and Mr. Busse testified that they performed their analysis of Heron’s

Landing in accordance with ASTM              E2128.   E2128       is a set of standards published by the

American       Society for Testing and Materials entitled “Standard          Guide    for Evaluating Water



                                                 Page 4 of 6
Leakage     of Building   Walls.”     It is a recognized,     peer-reviewed,   and    generally accepted

methodology for evaluating, among other things, the source of moisture intrusion in a building

wall and the resulting damage.      The standards were developed by people in the fields of building

construction and design and they are the industry standard.         From the testimony and the peer-

reviewed article “Qualitative Sampling of the Building Envelope for Water Leakage” presented

to the court at the hearing, it is clear that the E2128 protocols merely require qualitative testing

or sampling such as that which was performed in this case.          The literature rejects the idea that

quantitative or statistically valid sampling is necessary to appropriately analyze the cause of

moisture intrusion into a building envelope, what might prevent it, and the potential for moisture-

telated damage.    In this case, Mr. Woods and Mr. Busse performed the E1105 test to corroborate

their findings after both had       developed    an understanding    of the means       and methods    of

construction and the areas of moisture intrusion.      Their testing and analysis were consistent with

the protocols found in E2128 and are scientifically valid and reliable for purposes of §90.702.

          The court’s determination is not without qualification.        Without a statistically valid

sample, it would be wholly improper for these two experts to testify that other window units in

the condominium complex have experienced water intrusion and damage.                 Tn other words, both

experts cannot extrapolate from the three tests that the other window units in the complex have

actually had the same experience and contain water damage.            That said, nothing in this order

should prevent these experts from testifying about moisture intrusion and damage in and around

other window units that they personally observed.        Furthermore, they can utilize the test results

to explain what would happen to the wood frame in and around any non-tested window unit that

contained the same construction materials and methods of installation as those windows tested if

water did penetrate the building envelope.



                                                Page 5 of 6
The second qualification to this order is that neither expert has the credentials to testify

about design and operations of the HVAC              systems in the buildings.      Each is qualified to testify

about how water from the HVAC system may contribute to moisture intrusion into the building

envelope and any flashing or other steps that might be necessary to protect the envelope and

wood framing from moisture originating from this source.                 However, they cannot testify about

changes        to HVAC   design   and   operations      that might    decrease    or eliminate   moisture   from

emanating from any HVAC system.

          Accordingly, IT IS ORDERED:

          1        The motions are DENIED WITH QUALIFICATION;

          2        Mr.   Woods    and   Mr.   Busse’s     testimony    comports     with   the requirements   of

§90.702 as their opinions are based on sufficient facts or data, reliable methodology and

scientific principles, and a reliable application of the methodology and principles to the facts in

this case;

          3        Each expert may not extrapolate from the results of the E1105 tests performed on

the three window units that any other non-tested window unit has also experienced moisture

intrusion and resulting damage;

          4.       Each expert may not testify concerning the design and operational aspects of any

HVAC system.

          DONE     AND ORDERED           in Chambers at Jacksonville, Duval County, Florida, this 14%




                                                                     Lut
day of April, 2016.


                                                              J       ES H. DANIEL, Circuit Judge
Copies furnished to:
Attorneys of Record via EPortal



                                                  Page 6 of 6