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Filing # 190081674 E-Filed 01/19/2024 09:13:11 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
limitedliability company, f/k/a AVH
ACQUISITION LLC; ADVANCED DEFENDANT/CROSSCLAIM
WRAPPING AND CONCRETE PLAINTIFF, ROYAL OAK
SOLUTIONS OF CENTRAL FLORIDA, HOMES, LLC’S, MOTION
INC., a Florida corporation, DON KING’S FOR PARTIAL SUMMARY
CONCRETE, INC., a Florida corporation; JUDGMENT AS TO COUNT I
HUGH MACDONALD CONSTRUCTION, OF PLAINTIFF’S SECOND
INC., a Florida corporation;
IMPERIAL AMENDED COMPLAINT
BUILDING CORPORATION, a Florida FOR NEGLIGENCE AND
corporation; PREMIER PLASTERING OF VICARIOUS LIABILITY AND
CENTRAL FLORIDA, INC. n/k/a TGK INCORPORATED
STUCCO, INC., a Florida corporation; MEMORANDUM OF LAW
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;
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Defendants.
/
ROYAL OAK HOMES, LLC, f/k/a AVH
ACQUISITION,
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,
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INC., a Florida Corporation; DON KING’S
CONCRETE INC., a Florida Corporation,
Third-Party Plaintiff,
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;
E.R.O. CONSTRUCTION, INC., a Florida
Corporation; LIOS CONCRETE CORP., a
Florida Corporation; and ATLANTIC
CONCRETE SYSTEMS, INC., a Florida
Corporation,
Third-Party Defendants.
/
DEFENDANT/CROSSCLAIM PLAINTIFF, ROYAL OAK HOMES, LLC’S,
MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO COUNT I OF
PLAINTIFF’S SECOND AMENDED COMPLAINT FOR NEGLIGENCE
AND VICARIOUS LIABILITY AND INCORPORATED
MEMORANDUM OF LAW
Defendant/Crossclaim Plaintiff, Royal Oak Homes, LLC (‘Royal Oak”),
pursuant to Rule 1.510, Florida Rules of Civil Procedure, moves for partial summary
judgment on Plaintiff, Villas at Emerald Lake Homeowners Association, Inc.’s (the
3
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“Association”), negligence and vicarious liability claim in Count I of Plaintiffs
Second Amended Complaint. That claim is barred as a matter of law under Florida’s
economic loss rule.
I INTRODUCTION
Plaintiff sued Royal Oak for alleged design and construction defects within
the townhome buildings in the Villas at Emerald Lake townhome community located
in Osceola County, Florida (“Emerald Lake’), constructed by Royal Oak’s
subcontractors. Plaintiff asserted a negligence and vicarious liability claim against
Royal Oak in Count I of the Second Amended Complaint. In another count, Plaintiff
asserted a claim for breach of implied warranties arising out of a contractual
relationship on behalf of all of its members, alleging they relied upon implied
warranties made to them by Royal Oak. The only damages claimed by Plaintiff
under the negligence and vicarious liability and the breach of implied warranties
counts relate to repairs to the townhomes themselves or their components. Plaintiff's
negligence and vicarious liability claim is therefore barred under the economic loss
tule as a matter of law as further set forth below.
I. STATEMENT OF UNDISPUTED MATERIAL FACTS
Emerald Lake is a townhome community located in Osceola County, Florida.
See Affidavit of Jeff Fellows in Support of Defendant Royal Oak Homes, LLC’s
Motions for Partial Summary Judgment and Motion to Strike Plaintiff's Demand for
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Jury Trial, dated January 18, 2024 (“Fellows Aff.”), 3. The Fellows Affidavit was
separately filed with the Court. Royal Oak served as general contractor for the
construction of the 76 townhomes in 10 buildings. /d. Royal Oak sold its townhomes
in Emerald Lake to individual homeowners pursuant to purchase agreements, which
expressly addressed the matter of express and implied warranties. Fellows Aff., 9
7, 9-12, Comp. Ex. A.
The Association is a non-profit corporation organized and existing pursuant
to Chapter 720, Florida Statutes, to govern the operations of Emerald Lake pursuant
to the Governing Documents, the Declaration of Covenants and Restrictions of the
Villas at Emerald Lake. Second Am. Compl. ff 9-11; Fla. Stat. § 720.303(1).
The Association filed the Second Amended Complaint seeking damages for
alleged design and construction defects to the townhomes against Royal Oak and the
Royal Oak subcontractors. Second Am. Comp. {| 11-38, 49-63. The Association
claims this action is filed in its own right and as the representative of its members,
but the Association admits its members are “the fee-simple owners of the
Townhomes, the common areas, and the real property, which comprise” Emerald
Lake. Id., ff 11, 43.
In Count I, the Association asserted a negligence and vicarious liability claim
against Royal Oak, seeking damages for “the cost of repairing the construction
deficiencies; the resulting damage from the construction deficiencies; ... [and] the
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incidental and consequential damages caused thereby; .” Second Am. Compl., {J
67-72, “Wherefore” clause.
Another count in that Second Amended Complaint, Count III, asserted the
breach of implied warranties allegedly made to the Association and its members, on
which they are specifically alleged to have relied. Second Am. Compl., | 81-82.
The damages claimed in the breach of implied warranties count are exactly the same
damages as those claimed in the negligence count. Compare Second Am. Compl.
“Wherefore” clauses for Counts I and III.
There is no claim for or evidence of personal injury or of injury to any
property other than the townhomes themselves. Plaintiff's expert reports establish
that the only damages sought relate to repairs of the buildings or components thereof.
See Deposition of Felix Martin, Vol. I, June 15, 2021 (“Martin Dep.”), 35:22-25, 36-
37:1-19, Ex. 6, pp. 10-11, 16-17 18-19, copies of which are attached as Composite
Exhibit A; Deposition of Sean Heaney, Aug. 10, 2021 (“Heaney Dep.”), 36-37:1-7,
Ex. 27, copies of which are attached as Composite Exhibit B. Complete copies of
Mr. Martin’s and Mr. Heaney’s full deposition transcripts will be separately filed
with the Court.
Il. STANDARD OF REVIEW
As of May 1, 2021, Florida follows the new summary judgment standard:
“The summary judgment standard provided for in [Fla. R. Civ. P. 1.510] shall be
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construed and applied in accordance with the federal summary judgment standard.”
In re Amendments to Fla. R. Civ. P. 1.510, 309 So. 3d 192, 196 (Fla. 2020). That
standard includes the principles “articulated in Celotex Corp. v. Catrett, 477 U.S.
317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574” and its progeny. Id.
“Summary judgment is appropriate if the evidence before the court shows that
there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Fla. R. Civ. Pro. 1.510(a) (2021); Chapman v. AI
Transp., 229 F.3d 1012, 1023 (11th Cir. 2000); Celotex, 477 U.S. at 322-23. If the
movant’s burden is met, then, to avoid summary judgment, the nonmovant must “go
beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to
interrogatories, and admissions on file,’ designate ‘specific facts showing that there
is a genuine issue for trial.’” Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)).
The movant’s burden “may be discharged by ‘showing’ — that is, pointing out
to the [trial] court — that there is an absence of evidence to support the nonmoving
party's case.” Celotex, 477 U.S. at 325. See also, Amendments, 2021 WL 1684095,
at *2 (‘..., those applying new rule 1.510 must recognize that a moving party that
does not bear the burden of persuasion at trial can obtain summary judgment without
disproving the nonmovant’s case.”’).
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Then, a party opposing summary judgment “must do more than simply show
that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S.
at 586. Instead, the nonmovant must show “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
In essence, the federal summary judgment standard mirrors the directed
verdict standard with respect to determining whether the finder of fact could
reasonably decide the matter in the nonmovant’s favor. Amendments, 2021 WL
1684095, at *2 (“..., those applying new rule 1.510 must recognize the fundamental
similarity between the summary judgment standard and the directed verdict
standard.”); Celotex, 477 U.S. at 323; Anderson, 477 U.S. at 250. Under Florida’s
newly adopted standard, “[w]here the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for
trial.”” Scott v. Harris, 550 U.S. 372, 378 (2007).
Finally, “a trial court may enter partial summary judgment for part of a
pleading with the case continuing as to the balance.” Fla. R. Civ. Pro. 1.510(a)
(2021); see also Pelican Creek Homeowners, LLC v. Pulverenti, 243 So. 3d 467,
473 (Fla. 5th DCA 2018). Here, Plaintiff's negligence and vicarious liability claim
is barred as a matter of law by the economic loss rule.
IV. ARGUMENT: PLAINTIFF’S NEGLIGENCE AND VICARIOUS
LIABILITY CLAIM IS BARRED BY THE ECONOMIC LOSS RULE
AS A MATTER OF FLORIDA LAW
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In cases such as this involving the purchase of a product, the economic loss
tule bars tort claims for economic losses that only relate to the product itself. Tiara
Condo. Assoc., Inc. v. Marsh & Mclennan Cos., Inc., 110 So. 3d 399, 401 (Fla.
2013). Quoting its earlier decision in Casa Clara Condo. Ass’n, Inc., v. Charley
Toppino and Sons, Inc., 620 So. 2d 1244, 1246 (Fla. 1993), the Florida Supreme
Court explained in Tiara that “[e]conomic losses” barred by this rule include
“damages for inadequate value, costs of repair and replacement of the defective
product, or consequent loss of profits — without any claim of personal injury or
damage to other property.” Tiara, 110 So. 3d at 401.
Casa Clara involved tort claims of construction defects by a homeowner who
had no contract or privity with the defendant contractor. Casa Clara, 620 So. 2d at
1245. The Court affirmed the bar of those claims under the economic loss rule and
further explained that the building, including its component parts, is the relevant
“product.” Jd. at 1246.
The Third District recently followed Casa Clara and applied the economic
loss rule in 2711 Hollywood Beach Condo. Ass'n, Inc. v. TRG Holiday, Ltd., 307 So.
3d 869, 870-71 (Fla. 3d DCA 2020). It affirmed a partial summary judgment for a
company who supplied components of the fire suppression system installed in the
condominium building. /d. The Third District explained that the supplier’s fittings
were an integral part of the finished product — the condominium building — and thus
9
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did not injure “other” property. /d. Thus, the economic loss rule barred the plaintiffs
negligence claims “to the extent that [the plaintiff] sought damages to replace the
[fire suppression system] and repair damage to the building.” Jd.
The negligence and vicarious liability claim here is not materially different
from the negligence claims in 27/1 Hollywood Beach. The Association seeks the
costs to repair alleged damages to the townhome buildings themselves due to alleged
defects in the construction of the building envelopes for those buildings. As
reflected in its experts’ damages reports, the only damages claimed by the
Association relate to repairs to the buildings themselves or their components.
Even before 2711 Hollywood Beach, the Court’s decision in Casa Clara has
been applied by post-Tiara courts to negligence claims in construction defect cases
such as this case. In particular, Florida trial courts had previously concluded “that
Tiara should be interpreted only as a limitation on the economic loss rule which does
not overrule Casa Clara.” Order Granting Motion for Summary Judgment, Cent.
Park LV Condo. Ass’n, Inc. v. Summit Contractors, Inc., et al., No. 2010-CA-
015748-O (Fla. Cir. Ct. May 24, 2013) (holding “the economic loss rule preclude[ed]
plaintiff [association] from bringing a tort claim because the only damages it
suffered were to the homes, that is, the products themselves’).
Other trial courts had similarly ruled:
e Order Granting Motion to Dismiss, Siena at Celebration Master Assn,
Inc. v. Winter Park Constr. Co., No. 2009-CA-6474 (Fla. Cir. Ct. Sept.
10
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4, 2013) (dismissing a condominium association’s negligence cause of
action based on the economic loss rule because the only damages
alleged to have been suffered were to the condominium units
themselves and not damage to other property);
Order on Motion to Dismiss, Promenades at Bella Trae Condo. Ass’n,
Inc. v. Pulte Home Corp., et al., No. 2013-CA-3556 (Fla. Cir. Ct. Jan.
28, 2014) (dismissing a negligence claim based on the economic loss
tule in a construction defect case);
Order on Motion for Leave to Amend, Artisan Club Condo. Ass’n, Inc.
v. The St. Joe Co., et al., No. 2009-CA-10804 (Fla. Cir. Ct. July 15,
2015) (denying a developer leave to amend to bring negligence claims
against subcontractors in a construction defect case based on the
economic loss rule).
Florida Federal District Courts, applying Florida law, likewise have held the
economic loss rule bars tort claims by owners in construction defect cases. See, e.g.,
Gazzara vy. Pulte Home Corp., 207 F. Supp. 3d 1306, 1309 (M.D. Fla. 2016)
(dismissing a homeowner’s negligence claim based on the economic loss rule and
holding ‘“Florida’s economic loss rule bars tort claims by owners of defective
products who suffer solely economic losses”); Goldson v. KB Home, Case No. 2017
WL 1038065, at *3 (M.D. Fla. 2017) (finding the economic loss rule barred a
homeowner’s fraud claim against a builder).
Florida’s economic loss rule requires entry of partial summary judgment on
Plaintiff's negligence and vicarious liability claim.
11
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Vv CONCLUSION
For these reasons, Royal Oak is entitled to partial summary judgment on
Count I of Plaintiff's Second Amended Complaint.
DATED: January 19, 2024
Respectfully submitted,
/s/ James 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
fgonzalez@carltonfields.com
Attorneys for Defendant, Royal Oak
Homes, LLC
12
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on January 19, 2024, the foregoing was
electronically filed with the Clerk of the Court by using the Florida e-filing Portal,
with electronic filing notices to all counsel of record.
/s/ James Michael Walls
Attorney
13
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Exhibit “A”
35
yesterday.
Q Has Mr. Heaney provided you any documents
to review?
A No.
Q What did you do as a result of this call?
A Well, I went back and updated the report.
Q How did you update the report?
A I went back and just, essentially,
reviewed it to make sure that everything that we had
10 discussed in the call was included, and then I just
11 cleaned it up, I guess is the best way I would
12 describe it. I mean, look, I had two hours I
13 charged for that, including a conference call, so
14 there couldn't have been very much work I had to do
15 in terms of updating the report.
16 Q Do you recall the changes you made to the
17 report?
18 A No, not specifically, I would have to go
19 and compare both reports. I would just classify it
20 more as cleaning up the report.
21 MR. WALLS: Mr. Martin, I am going to show you
22 what I am going to mark as Exhibit No. 6
23 (Exhibit No. 6 was marked for
24 identification.)
25 Q This is Marcon Forensics Villas at Emerald
Legal Realtime Reporting
36
Lake, Kissimmee, Florida, Engineering Assessment
Report created for BallJanik on behalf of Villas at
Emerald Lake Homeowners' Association, Inc. dated
April 2, 2021; did I read that correctly?
A You did.
Q Mr. Martin, this is Exhibit 6 of your
engineering report pages one through 999. I can
scroll through the whole thing, but that would take
awhile. Do you have any reason to believe this is
10 not your expert report for the Villas at Emerald
11 Lake?
12 A No. It does appear to be the report that
13 I published on April 2nd, 2021. As you mentioned,
14 it has the exact number of pages as the prior
15 report, so it is the report.
16 Q So as we go through this deposition, and
17 we refer to your report, can we agree that when we
18 use that terminology, we are referring to this
19 Exhibit No. 6?
20 A Yes, that is fair.
21 Q And just to clarify, you understood that
22 you were supposed to include all of your opinions
23 that you plan to testify to at trial in this
24 litigation in the report marked as Exhibit 6?
25 A I can't agree with that one for the
Legal Realtime Reporting
37
reasons I have already stated.
Q Well, Mr. Martin, as we sit here today,
did you include all the opinions you have and plan
to testify at trial through today's date in this
litigation in this report marked as Exhibit 6?
A Well, again, the opinions I offered in my
report dated April 2, 2021, Exhibit 6, are the
opinions I had as of that date. You are going to be
asking me questions today and tomorrow. I may
10 revise some of those opinions between those two
11 days. But as I sit here right now, the opinions
12 that I have in that report would be what I would
13 consider the opinions of what I have as of right
14 now, subject to changes during this deposition.
15 Q Fair enough. Fair enough.
16 And would the same be true for the reasons
17 for your opinions, would you provide, essentially,
18 the same answer?
19 A Yes, I would.
20 Q And by the way, this time I actually
21 managed to get your full report in with your
22 Architectural Code and your photographic evidence of
23 appendices, and those are a part of your report and
24 opinions, correct?
25 A That's correct.
Legal Realtime Reporting
alin Marcon
Forensics
Villas at Emerald Lake
Kissimmee, FL
Engineering Assessment Report
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Created For:
BALL JANIK, LLP
on behalf of the
VILLAS AT EMERALD LAKE HOMEOWNERS ASSOCIATION, INC.
April 2, 2021
Marcon Forensics Project Number: 20004
[5.]
1278 Glenneyre Street, Suite 247, Laguna Beach, California 92651
6401 Time Square Avenue, Suite Al, Orlando, Florida 32835
MARCON FORENSICS, LLC Marcon Job No. 20004
Villas at Emerald Lake April 2, 2021
1.1022 Unsealed diverter at confined rake termination.
. 2010, 2014 FRC: R903.1
o Atall three roof diverters tested, the diverter fold was not
sealed. This has allowed water to penetrate and has
damaged the roof sheathing.
ann nnn
Synopsis: The aggregate effect of the code violations listed above has
resulted in water intrusion damage to the roof sheathing and will require
repair.
Repair Scope (All Roofs). Remove and replace all roof shingles,
underlayment, and flashing at all roofs. Install new confined rake and eave
flashing. Install
new underlayment, turned up at the confined rake walls,
and install new 4-inch strip of sealant from new eave edge flashing flange
to underlayment. Trim tabs and install new starter course nailed in place
at 3 inches minimum from edge. Install new roof shingles with minimum 6
nails per full width shingle, spaced per manufacturer's installation
instructions.
panna nn nanan nanan nn nnn nnn nnn nnn nnn nnn nnn
2.0 FENESTRATIONS
2.01 Windows
2.0101 Window fails AAMA 511dam test.
. 2010, 2014 FRC: R703.1
o Asill dam test using the AAMA 511 protocol produced
product leaks at one out of four windows tested in wood
walls for this condition.
A sill dam test using the AAMA 511 protocol produced
product leaks at one out of one window tested in a
masonry wall for this condition.
2.0102 Window fails AAMA 501.2 spray test.
. 2010, 2014 FRC: R703.1
o Spray test using an AAMA 501.2 wand produced
installation leaks at three out of four windows tested in
wood walls for this condition for this condition.
Spray test using an AAMA 501.2 wand produced
installation leaks at one out of one window tested in in a
masonry wall for this condition.
2.0103 Sealant under window fins.
. 2010, 2014 FBC: 104.9
10
MARCON FORENSICS, LLC Marcon Job No. 20004
Villas at Emerald Lake April 2, 2021
o At one out of six locations tested in wood walls for this
condition, sealant was installed under the sill fin, in
violation of Tyvek's installation instructions. This prevents
water from weeping out and causes damage to the
interiors.
2.0112 Damaged window fin.
. 2010, 2014 FRC: R703.1
o At one out of six locations tested in wood walls, the
window corner was damaged. This creates a pathway
for water intrusion and damage to the wall sheathing
and interiors.
2.0116 Incorrect type of window installed.
. 2010, 2014 FRC: R703.1; 2010, 2014 FBC 104.9
o Six out of six windows tested in wood walls were intended
for an installation with a thickened stucco band around
the window perimeter. Wall Section 3/8 calls for a "3/8"
deep groove filled with caulk” and no stucco band. The
wider window frame allows water to penetrate and
damage the wall sheathing.
nnn nnn nnn nnn
Synopsis: The aggregate effect of the defects listed above has allowed
water to penetrate and has damaged the interiors and wall framing.
Windows. Coordinate repairs in Walls Section. Remove and replace alll
windows in wood and masonry walls.
nnn nnn nnn nnn nnn
3.0 WALLS
3.01 Stucco Over Wood Frame
3.0101 Stucco weather barrier reverse lapped under window sill.
. 2010, 2014 FRC: R703.1; 2010 FRC: R703.6.2; 2014 FRC R703.6;
ASTM C1063: 7.8.3.1
o A reverse lap condition exists at six out of six windows
tested in wood walls, below the window sill where the
open and unsecured edge of the stucco paper butts up
against the underside of the window frame. This allows
water to penetrate and damage the stucco and wall
sheathing.
3.0102 Insufficient length of wire lath staples
. 2010 FRC: R703.6.2; 2014 FRC R703.6; ASTM C1063: 7.10.2.2
ll
MARCON FORENSICS, LLC Marcon Job No. 20004
Villas at Emerald Lake April 2, 2021
allowing additional water intrusion and damage to the
stucco.
3.0111 Improper stucco application.
. 2010 FRC: R703.6.1, 2014 FRC R703.6; ASTM C926: 7.3.3.2
o Observed at two out of six locations where this condition
was tested. The stucco application on the walls was
done in only one coat. This results in additional visible
cracking of the stucco.
panna nn nanan nanan nn nnn nnn nnn nnn nnn nnn nnn
Synops (Stucco Over Frame): Aggregate problems with the stucco
installation have caused water intrusion and damage to the stucco and
wall sheathing.
Stucco Over Frame Repair: Remove and
replace all stucco and weather-
resistive barriers over the wood-framedsecond-floor framing. Replace
using 114" long lath staples and three separate plaster coats. Remove and
replace damaged sheathing (assume 5% damaged).
Wrap building wrap into and install pan flashing at all window openings.
Provide flashing tape to building wrap per manufacturer instructions at all
window and wall penetrations. Provide a separation between
windows/dryer vents and stucco, to be filled with backer rod and
polyurethane sealant.
Install sill bib flashing under all windows and dryer vents, integrated with the
stucco backing to create a shingled installation.
Synopsis: (Stucco over Concrete Block): Stucco and sealant installations
have caused water intrusion damage to the stucco.
Stucco Over Concrete Block Repair: Remove and replace stucco around
all windows. Provide properly installed polyurethane secondary sealant
around all window perimeters. Provide a separation between window
frame and stucco, to be filled with backer rod and primary polyurethane
sealant.
New vertical control joins shall be saw-cut %" deep into the block at a
maximum of every 18 feet to delineate a maximum of 144 sq. ft. at all
masonry walls to be filled with backer rod and sealant.
Perform tap test on masonry walls and remove and replace any loose
stucco (assume 5% of wall area). Sandblast dash-bond coat off stucco at
one-third of all buildings. Apply proper color coat and paint.
panna nn nn nnn nn nnn nnn nn nnn
16
MARCON FORENSICS, LLC Marcon Job No. 20004
Villas at Emerald Lake April 2, 2021
4.0 FLOORS
4.03 Slab on Grade
4.0301 Uncontrolled cracking of concrete slab.
. 2010 FRC R506.2.4
o The lack of control joints in the floor slab is resulting in
uncontrolled cracking that is telegraphing through and
cracking the floor tile.
a
Synopsis (Slab on Grade): The aggregate effect of the code
violation/construction defect listed above has contributed to the
uncontrolled cracking of the interior slabs and floor tile.
For all buildings constructed under the 2101 FRC only, remove alll floor
finishes from entire first-floor living areas. Epoxy pressure-inject all concrete
slab cracks (including Garage). Replace flooring and coat Garage floors.
ee
5.0 STRUCTURAL
5.01 Shear Walls
5.0101 Shear Wall Edge Nailing.
. 2010/2014 FBC 107.4
o The Shear Wall Edge Nailing at one out of two locations
tested was less than required by the approved plans (4”
o/c, Section 3/8). This results in a more flexible building
that will sway more in heavy winds, causing additional
stucco cracking.
5.0103 Shear Wall nail size.
. 2010/2014 FBC 107.4
o At alll fifteen locations where this condition was tested,
the nails used were smaller in size than required by the
approved plans (8d commons at 4” o/c, Sheet GEN,
WOD SHEATHING ATTACHMENTS and NOTE under
Simpson Note). This results in a more flexible building that
will sway more in heavy winds, causing additional stucco
cracking.
5.0132 Missing hurricane strap.
. 2010/2014 FBC 107.4
o At two locations tested for this condition, Simpson SP4
straps called for in Section 3/8 were not installed. This
17
MARCON FORENSICS, LLC Marcon Job No. 20004
Villas at Emerald Lake April 2, 2021
results in a more flexible building that will sway more in
heavy winds, causing additional stucco cracking.
5.02 Diaphragms
5.0205 Floor Boundary Nailing.
. 2010/2014 FBC 107.4
o At two locations tested for this condition, no Boundary
Nailing was observed along the edge of the floor
sheathing to the rim truss (6” o/c, Section 3/8). This does
not provide for a complete load path and results in a
more flexible building that will sway more in heavy winds,
causing additional stucco cracking.
5.03 Framing
5.0301 Untreated wood in contact with concrete masonry.
. 2010/2014 FBC 107.4
o At one of two locations tested for this condition, no
isolation was provided between the untreated wood of
the edge truss and the concrete masonry (Section 3/8).
This does not provide protection for the wood against
decay.
a
Synopsis: The aggregate effect of the code violations listed above has
resulted in buildings more susceptible to sway.
Coordinate repairs with the repairs in the Walls section.
At all building shear walls remove wall sheathing 48 inches high centered
on the second-floor line. Install new 16d common nails at 8 inches o/c
through the second-floor sill plate, through the floor diaphragm and into
the rim truss/rim board. Replace removed sheathing, blocking all edges.
Re-nail all exterior wall sheathing panel edges and Edge Nail transfer
locations with 8d at 6” o/c). Install new Simpson SP4 straps centered on the
second floor at every wall stud.
Inspect all rim truss/rim board locations for missing isolation between
untreated wood and masonry. Where missing, jack up rim truss/rim board
and insert stucco backing strips between the rim truss/rim board and the
top of the masonry (assume 50% of all locations). Set rim truss/rim board
back down on masonry wall.
a
18
MARCON FORENSICS, LLC Marcon Job No. 20004
Villas at Emerald Lake April 2, 2021
9.0 SITEWORK
9.02 Landscaping
9.0230 Insufficient/lack of proper drainage adjacent exterior wall.
. 2010/2014 FRC: R401.3
o Poor drainage has caused erosion next to building
walls.
panna nn nn nnn nn nnn nnn nn nnn
Synopsis: The effect of the defect listed above violates the requirements
of the building code and standards of care, and has contributed to
damage to the site landscaping.
(Landscaping): Regrade drainage adjacent buildings and entry walks to
drain away from foundation and re-landscape.
nen
IDG HOMES
1.0 ROOFS
1.01 Asphalt Shingles
1.0101 Lack of 4-inch roof cement over drip edge flange.
. 2004 FRC: R905.2.8.5
o At two out of three roofs tested for this condition, the
required 4-inch wide strip of sealant from the eave
flange to the underlayment was insufficiently placed.
This allows water to penetrate and damage the roof
sheathing.
1.0102 Shingles do not overhang eave.
. 2004 FRC: R903.1
o Atall roofs tested (three out of three locations), shingles
do not overhang eave minimum 1/2”, nor are they
trimmed flush with the “D: style eave flashing. This allows
water to penetrate along the eave and damage the
roof sheathing.
1.0105 Starter shingles nailed through eave flashing.
. 2004 FRC: R903.1
o At two out of two roofs tested for this condition, the
starter strip fasteners were installed less than 3 inches
from the edge of the roof, creating an unsealed
19
Exhibit “B”
36
A. Correct. But if you want to talk about the
costs, you can speak with me about that.
(Marked for Identification as
Deposition Exhibit No. 27.)
BY MR. WALLS:
Q. Let me show you what I'll mark as Exhibit 27
to this deposition. Do you recognize this document?
A. I do.
Q. What is it?
10 A. It is my cost of repair for the scope found in
11 the Marcon report.
12 Q. For the Royal Oak Homes?
13 A. Correct.
14 Q. And does this include all of your opinions
15 that you plan to testify to at trial regarding the cost?
16 A. At the present time.
17 Q. And does it include the reasons for your
18 opinions that you plan to testify at trial?
19 A. I don't understand that question. Sorry.
20 Q. Well, to understand your opinions, we're going
21 to walk through this Exhibit 27. Is there any other
22 document I should be walking through to understand the
23 reasons for yo
Preview
Filing # 190081674 E-Filed 01/19/2024 09:13:11 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 limitedliability company, f/k/a AVH ACQUISITION LLC; ADVANCED DEFENDANT/CROSSCLAIM WRAPPING AND CONCRETE PLAINTIFF, ROYAL OAK SOLUTIONS OF CENTRAL FLORIDA, HOMES, LLC’S, MOTION INC., a Florida corporation, DON KING’S FOR PARTIAL SUMMARY CONCRETE, INC., a Florida corporation; JUDGMENT AS TO COUNT I HUGH MACDONALD CONSTRUCTION, OF PLAINTIFF’S SECOND INC., a Florida corporation; IMPERIAL AMENDED COMPLAINT BUILDING CORPORATION, a Florida FOR NEGLIGENCE AND corporation; PREMIER PLASTERING OF VICARIOUS LIABILITY AND CENTRAL FLORIDA, INC. n/k/a TGK INCORPORATED STUCCO, INC., a Florida corporation; MEMORANDUM OF LAW 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; 134959716.1 Defendants. / ROYAL OAK HOMES, LLC, f/k/a AVH ACQUISITION, 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, 134959716.1 INC., a Florida Corporation; DON KING’S CONCRETE INC., a Florida Corporation, Third-Party Plaintiff, 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; E.R.O. CONSTRUCTION, INC., a Florida Corporation; LIOS CONCRETE CORP., a Florida Corporation; and ATLANTIC CONCRETE SYSTEMS, INC., a Florida Corporation, Third-Party Defendants. / DEFENDANT/CROSSCLAIM PLAINTIFF, ROYAL OAK HOMES, LLC’S, MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO COUNT I OF PLAINTIFF’S SECOND AMENDED COMPLAINT FOR NEGLIGENCE AND VICARIOUS LIABILITY AND INCORPORATED MEMORANDUM OF LAW Defendant/Crossclaim Plaintiff, Royal Oak Homes, LLC (‘Royal Oak”), pursuant to Rule 1.510, Florida Rules of Civil Procedure, moves for partial summary judgment on Plaintiff, Villas at Emerald Lake Homeowners Association, Inc.’s (the 3 134959716.1 “Association”), negligence and vicarious liability claim in Count I of Plaintiffs Second Amended Complaint. That claim is barred as a matter of law under Florida’s economic loss rule. I INTRODUCTION Plaintiff sued Royal Oak for alleged design and construction defects within the townhome buildings in the Villas at Emerald Lake townhome community located in Osceola County, Florida (“Emerald Lake’), constructed by Royal Oak’s subcontractors. Plaintiff asserted a negligence and vicarious liability claim against Royal Oak in Count I of the Second Amended Complaint. In another count, Plaintiff asserted a claim for breach of implied warranties arising out of a contractual relationship on behalf of all of its members, alleging they relied upon implied warranties made to them by Royal Oak. The only damages claimed by Plaintiff under the negligence and vicarious liability and the breach of implied warranties counts relate to repairs to the townhomes themselves or their components. Plaintiff's negligence and vicarious liability claim is therefore barred under the economic loss tule as a matter of law as further set forth below. I. STATEMENT OF UNDISPUTED MATERIAL FACTS Emerald Lake is a townhome community located in Osceola County, Florida. See Affidavit of Jeff Fellows in Support of Defendant Royal Oak Homes, LLC’s Motions for Partial Summary Judgment and Motion to Strike Plaintiff's Demand for 134959716.1 Jury Trial, dated January 18, 2024 (“Fellows Aff.”), 3. The Fellows Affidavit was separately filed with the Court. Royal Oak served as general contractor for the construction of the 76 townhomes in 10 buildings. /d. Royal Oak sold its townhomes in Emerald Lake to individual homeowners pursuant to purchase agreements, which expressly addressed the matter of express and implied warranties. Fellows Aff., 9 7, 9-12, Comp. Ex. A. The Association is a non-profit corporation organized and existing pursuant to Chapter 720, Florida Statutes, to govern the operations of Emerald Lake pursuant to the Governing Documents, the Declaration of Covenants and Restrictions of the Villas at Emerald Lake. Second Am. Compl. ff 9-11; Fla. Stat. § 720.303(1). The Association filed the Second Amended Complaint seeking damages for alleged design and construction defects to the townhomes against Royal Oak and the Royal Oak subcontractors. Second Am. Comp. {| 11-38, 49-63. The Association claims this action is filed in its own right and as the representative of its members, but the Association admits its members are “the fee-simple owners of the Townhomes, the common areas, and the real property, which comprise” Emerald Lake. Id., ff 11, 43. In Count I, the Association asserted a negligence and vicarious liability claim against Royal Oak, seeking damages for “the cost of repairing the construction deficiencies; the resulting damage from the construction deficiencies; ... [and] the 134959716.1 incidental and consequential damages caused thereby; .” Second Am. Compl., {J 67-72, “Wherefore” clause. Another count in that Second Amended Complaint, Count III, asserted the breach of implied warranties allegedly made to the Association and its members, on which they are specifically alleged to have relied. Second Am. Compl., | 81-82. The damages claimed in the breach of implied warranties count are exactly the same damages as those claimed in the negligence count. Compare Second Am. Compl. “Wherefore” clauses for Counts I and III. There is no claim for or evidence of personal injury or of injury to any property other than the townhomes themselves. Plaintiff's expert reports establish that the only damages sought relate to repairs of the buildings or components thereof. See Deposition of Felix Martin, Vol. I, June 15, 2021 (“Martin Dep.”), 35:22-25, 36- 37:1-19, Ex. 6, pp. 10-11, 16-17 18-19, copies of which are attached as Composite Exhibit A; Deposition of Sean Heaney, Aug. 10, 2021 (“Heaney Dep.”), 36-37:1-7, Ex. 27, copies of which are attached as Composite Exhibit B. Complete copies of Mr. Martin’s and Mr. Heaney’s full deposition transcripts will be separately filed with the Court. Il. STANDARD OF REVIEW As of May 1, 2021, Florida follows the new summary judgment standard: “The summary judgment standard provided for in [Fla. R. Civ. P. 1.510] shall be 134959716.1 construed and applied in accordance with the federal summary judgment standard.” In re Amendments to Fla. R. Civ. P. 1.510, 309 So. 3d 192, 196 (Fla. 2020). That standard includes the principles “articulated in Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574” and its progeny. Id. “Summary judgment is appropriate if the evidence before the court shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. Pro. 1.510(a) (2021); Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000); Celotex, 477 U.S. at 322-23. If the movant’s burden is met, then, to avoid summary judgment, the nonmovant must “go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)). The movant’s burden “may be discharged by ‘showing’ — that is, pointing out to the [trial] court — that there is an absence of evidence to support the nonmoving party's case.” Celotex, 477 U.S. at 325. See also, Amendments, 2021 WL 1684095, at *2 (‘..., those applying new rule 1.510 must recognize that a moving party that does not bear the burden of persuasion at trial can obtain summary judgment without disproving the nonmovant’s case.”’). 134959716.1 Then, a party opposing summary judgment “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. Instead, the nonmovant must show “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. In essence, the federal summary judgment standard mirrors the directed verdict standard with respect to determining whether the finder of fact could reasonably decide the matter in the nonmovant’s favor. Amendments, 2021 WL 1684095, at *2 (“..., those applying new rule 1.510 must recognize the fundamental similarity between the summary judgment standard and the directed verdict standard.”); Celotex, 477 U.S. at 323; Anderson, 477 U.S. at 250. Under Florida’s newly adopted standard, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.”” Scott v. Harris, 550 U.S. 372, 378 (2007). Finally, “a trial court may enter partial summary judgment for part of a pleading with the case continuing as to the balance.” Fla. R. Civ. Pro. 1.510(a) (2021); see also Pelican Creek Homeowners, LLC v. Pulverenti, 243 So. 3d 467, 473 (Fla. 5th DCA 2018). Here, Plaintiff's negligence and vicarious liability claim is barred as a matter of law by the economic loss rule. IV. ARGUMENT: PLAINTIFF’S NEGLIGENCE AND VICARIOUS LIABILITY CLAIM IS BARRED BY THE ECONOMIC LOSS RULE AS A MATTER OF FLORIDA LAW 134959716.1 In cases such as this involving the purchase of a product, the economic loss tule bars tort claims for economic losses that only relate to the product itself. Tiara Condo. Assoc., Inc. v. Marsh & Mclennan Cos., Inc., 110 So. 3d 399, 401 (Fla. 2013). Quoting its earlier decision in Casa Clara Condo. Ass’n, Inc., v. Charley Toppino and Sons, Inc., 620 So. 2d 1244, 1246 (Fla. 1993), the Florida Supreme Court explained in Tiara that “[e]conomic losses” barred by this rule include “damages for inadequate value, costs of repair and replacement of the defective product, or consequent loss of profits — without any claim of personal injury or damage to other property.” Tiara, 110 So. 3d at 401. Casa Clara involved tort claims of construction defects by a homeowner who had no contract or privity with the defendant contractor. Casa Clara, 620 So. 2d at 1245. The Court affirmed the bar of those claims under the economic loss rule and further explained that the building, including its component parts, is the relevant “product.” Jd. at 1246. The Third District recently followed Casa Clara and applied the economic loss rule in 2711 Hollywood Beach Condo. Ass'n, Inc. v. TRG Holiday, Ltd., 307 So. 3d 869, 870-71 (Fla. 3d DCA 2020). It affirmed a partial summary judgment for a company who supplied components of the fire suppression system installed in the condominium building. /d. The Third District explained that the supplier’s fittings were an integral part of the finished product — the condominium building — and thus 9 134959716.1 did not injure “other” property. /d. Thus, the economic loss rule barred the plaintiffs negligence claims “to the extent that [the plaintiff] sought damages to replace the [fire suppression system] and repair damage to the building.” Jd. The negligence and vicarious liability claim here is not materially different from the negligence claims in 27/1 Hollywood Beach. The Association seeks the costs to repair alleged damages to the townhome buildings themselves due to alleged defects in the construction of the building envelopes for those buildings. As reflected in its experts’ damages reports, the only damages claimed by the Association relate to repairs to the buildings themselves or their components. Even before 2711 Hollywood Beach, the Court’s decision in Casa Clara has been applied by post-Tiara courts to negligence claims in construction defect cases such as this case. In particular, Florida trial courts had previously concluded “that Tiara should be interpreted only as a limitation on the economic loss rule which does not overrule Casa Clara.” Order Granting Motion for Summary Judgment, Cent. Park LV Condo. Ass’n, Inc. v. Summit Contractors, Inc., et al., No. 2010-CA- 015748-O (Fla. Cir. Ct. May 24, 2013) (holding “the economic loss rule preclude[ed] plaintiff [association] from bringing a tort claim because the only damages it suffered were to the homes, that is, the products themselves’). Other trial courts had similarly ruled: e Order Granting Motion to Dismiss, Siena at Celebration Master Assn, Inc. v. Winter Park Constr. Co., No. 2009-CA-6474 (Fla. Cir. Ct. Sept. 10 134959716.1 4, 2013) (dismissing a condominium association’s negligence cause of action based on the economic loss rule because the only damages alleged to have been suffered were to the condominium units themselves and not damage to other property); Order on Motion to Dismiss, Promenades at Bella Trae Condo. Ass’n, Inc. v. Pulte Home Corp., et al., No. 2013-CA-3556 (Fla. Cir. Ct. Jan. 28, 2014) (dismissing a negligence claim based on the economic loss tule in a construction defect case); Order on Motion for Leave to Amend, Artisan Club Condo. Ass’n, Inc. v. The St. Joe Co., et al., No. 2009-CA-10804 (Fla. Cir. Ct. July 15, 2015) (denying a developer leave to amend to bring negligence claims against subcontractors in a construction defect case based on the economic loss rule). Florida Federal District Courts, applying Florida law, likewise have held the economic loss rule bars tort claims by owners in construction defect cases. See, e.g., Gazzara vy. Pulte Home Corp., 207 F. Supp. 3d 1306, 1309 (M.D. Fla. 2016) (dismissing a homeowner’s negligence claim based on the economic loss rule and holding ‘“Florida’s economic loss rule bars tort claims by owners of defective products who suffer solely economic losses”); Goldson v. KB Home, Case No. 2017 WL 1038065, at *3 (M.D. Fla. 2017) (finding the economic loss rule barred a homeowner’s fraud claim against a builder). Florida’s economic loss rule requires entry of partial summary judgment on Plaintiff's negligence and vicarious liability claim. 11 134959716.1 Vv CONCLUSION For these reasons, Royal Oak is entitled to partial summary judgment on Count I of Plaintiff's Second Amended Complaint. DATED: January 19, 2024 Respectfully submitted, /s/ James 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 fgonzalez@carltonfields.com Attorneys for Defendant, Royal Oak Homes, LLC 12 134959716.1 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on January 19, 2024, the foregoing was electronically filed with the Clerk of the Court by using the Florida e-filing Portal, with electronic filing notices to all counsel of record. /s/ James Michael Walls Attorney 13 134959716.1 Exhibit “A” 35 yesterday. Q Has Mr. Heaney provided you any documents to review? A No. Q What did you do as a result of this call? A Well, I went back and updated the report. Q How did you update the report? A I went back and just, essentially, reviewed it to make sure that everything that we had 10 discussed in the call was included, and then I just 11 cleaned it up, I guess is the best way I would 12 describe it. I mean, look, I had two hours I 13 charged for that, including a conference call, so 14 there couldn't have been very much work I had to do 15 in terms of updating the report. 16 Q Do you recall the changes you made to the 17 report? 18 A No, not specifically, I would have to go 19 and compare both reports. I would just classify it 20 more as cleaning up the report. 21 MR. WALLS: Mr. Martin, I am going to show you 22 what I am going to mark as Exhibit No. 6 23 (Exhibit No. 6 was marked for 24 identification.) 25 Q This is Marcon Forensics Villas at Emerald Legal Realtime Reporting 36 Lake, Kissimmee, Florida, Engineering Assessment Report created for BallJanik on behalf of Villas at Emerald Lake Homeowners' Association, Inc. dated April 2, 2021; did I read that correctly? A You did. Q Mr. Martin, this is Exhibit 6 of your engineering report pages one through 999. I can scroll through the whole thing, but that would take awhile. Do you have any reason to believe this is 10 not your expert report for the Villas at Emerald 11 Lake? 12 A No. It does appear to be the report that 13 I published on April 2nd, 2021. As you mentioned, 14 it has the exact number of pages as the prior 15 report, so it is the report. 16 Q So as we go through this deposition, and 17 we refer to your report, can we agree that when we 18 use that terminology, we are referring to this 19 Exhibit No. 6? 20 A Yes, that is fair. 21 Q And just to clarify, you understood that 22 you were supposed to include all of your opinions 23 that you plan to testify to at trial in this 24 litigation in the report marked as Exhibit 6? 25 A I can't agree with that one for the Legal Realtime Reporting 37 reasons I have already stated. Q Well, Mr. Martin, as we sit here today, did you include all the opinions you have and plan to testify at trial through today's date in this litigation in this report marked as Exhibit 6? A Well, again, the opinions I offered in my report dated April 2, 2021, Exhibit 6, are the opinions I had as of that date. You are going to be asking me questions today and tomorrow. I may 10 revise some of those opinions between those two 11 days. But as I sit here right now, the opinions 12 that I have in that report would be what I would 13 consider the opinions of what I have as of right 14 now, subject to changes during this deposition. 15 Q Fair enough. Fair enough. 16 And would the same be true for the reasons 17 for your opinions, would you provide, essentially, 18 the same answer? 19 A Yes, I would. 20 Q And by the way, this time I actually 21 managed to get your full report in with your 22 Architectural Code and your photographic evidence of 23 appendices, and those are a part of your report and 24 opinions, correct? 25 A That's correct. Legal Realtime Reporting alin Marcon Forensics Villas at Emerald Lake Kissimmee, FL Engineering Assessment Report re ete) Prat bot] Fake p an ZA co es . ea a iy ied em _ bide A | ae Created For: BALL JANIK, LLP on behalf of the VILLAS AT EMERALD LAKE HOMEOWNERS ASSOCIATION, INC. April 2, 2021 Marcon Forensics Project Number: 20004 [5.] 1278 Glenneyre Street, Suite 247, Laguna Beach, California 92651 6401 Time Square Avenue, Suite Al, Orlando, Florida 32835 MARCON FORENSICS, LLC Marcon Job No. 20004 Villas at Emerald Lake April 2, 2021 1.1022 Unsealed diverter at confined rake termination. . 2010, 2014 FRC: R903.1 o Atall three roof diverters tested, the diverter fold was not sealed. This has allowed water to penetrate and has damaged the roof sheathing. ann nnn Synopsis: The aggregate effect of the code violations listed above has resulted in water intrusion damage to the roof sheathing and will require repair. Repair Scope (All Roofs). Remove and replace all roof shingles, underlayment, and flashing at all roofs. Install new confined rake and eave flashing. Install new underlayment, turned up at the confined rake walls, and install new 4-inch strip of sealant from new eave edge flashing flange to underlayment. Trim tabs and install new starter course nailed in place at 3 inches minimum from edge. Install new roof shingles with minimum 6 nails per full width shingle, spaced per manufacturer's installation instructions. panna nn nanan nanan nn nnn nnn nnn nnn nnn nnn nnn 2.0 FENESTRATIONS 2.01 Windows 2.0101 Window fails AAMA 511dam test. . 2010, 2014 FRC: R703.1 o Asill dam test using the AAMA 511 protocol produced product leaks at one out of four windows tested in wood walls for this condition. A sill dam test using the AAMA 511 protocol produced product leaks at one out of one window tested in a masonry wall for this condition. 2.0102 Window fails AAMA 501.2 spray test. . 2010, 2014 FRC: R703.1 o Spray test using an AAMA 501.2 wand produced installation leaks at three out of four windows tested in wood walls for this condition for this condition. Spray test using an AAMA 501.2 wand produced installation leaks at one out of one window tested in in a masonry wall for this condition. 2.0103 Sealant under window fins. . 2010, 2014 FBC: 104.9 10 MARCON FORENSICS, LLC Marcon Job No. 20004 Villas at Emerald Lake April 2, 2021 o At one out of six locations tested in wood walls for this condition, sealant was installed under the sill fin, in violation of Tyvek's installation instructions. This prevents water from weeping out and causes damage to the interiors. 2.0112 Damaged window fin. . 2010, 2014 FRC: R703.1 o At one out of six locations tested in wood walls, the window corner was damaged. This creates a pathway for water intrusion and damage to the wall sheathing and interiors. 2.0116 Incorrect type of window installed. . 2010, 2014 FRC: R703.1; 2010, 2014 FBC 104.9 o Six out of six windows tested in wood walls were intended for an installation with a thickened stucco band around the window perimeter. Wall Section 3/8 calls for a "3/8" deep groove filled with caulk” and no stucco band. The wider window frame allows water to penetrate and damage the wall sheathing. nnn nnn nnn nnn Synopsis: The aggregate effect of the defects listed above has allowed water to penetrate and has damaged the interiors and wall framing. Windows. Coordinate repairs in Walls Section. Remove and replace alll windows in wood and masonry walls. nnn nnn nnn nnn nnn 3.0 WALLS 3.01 Stucco Over Wood Frame 3.0101 Stucco weather barrier reverse lapped under window sill. . 2010, 2014 FRC: R703.1; 2010 FRC: R703.6.2; 2014 FRC R703.6; ASTM C1063: 7.8.3.1 o A reverse lap condition exists at six out of six windows tested in wood walls, below the window sill where the open and unsecured edge of the stucco paper butts up against the underside of the window frame. This allows water to penetrate and damage the stucco and wall sheathing. 3.0102 Insufficient length of wire lath staples . 2010 FRC: R703.6.2; 2014 FRC R703.6; ASTM C1063: 7.10.2.2 ll MARCON FORENSICS, LLC Marcon Job No. 20004 Villas at Emerald Lake April 2, 2021 allowing additional water intrusion and damage to the stucco. 3.0111 Improper stucco application. . 2010 FRC: R703.6.1, 2014 FRC R703.6; ASTM C926: 7.3.3.2 o Observed at two out of six locations where this condition was tested. The stucco application on the walls was done in only one coat. This results in additional visible cracking of the stucco. panna nn nanan nanan nn nnn nnn nnn nnn nnn nnn nnn Synops (Stucco Over Frame): Aggregate problems with the stucco installation have caused water intrusion and damage to the stucco and wall sheathing. Stucco Over Frame Repair: Remove and replace all stucco and weather- resistive barriers over the wood-framedsecond-floor framing. Replace using 114" long lath staples and three separate plaster coats. Remove and replace damaged sheathing (assume 5% damaged). Wrap building wrap into and install pan flashing at all window openings. Provide flashing tape to building wrap per manufacturer instructions at all window and wall penetrations. Provide a separation between windows/dryer vents and stucco, to be filled with backer rod and polyurethane sealant. Install sill bib flashing under all windows and dryer vents, integrated with the stucco backing to create a shingled installation. Synopsis: (Stucco over Concrete Block): Stucco and sealant installations have caused water intrusion damage to the stucco. Stucco Over Concrete Block Repair: Remove and replace stucco around all windows. Provide properly installed polyurethane secondary sealant around all window perimeters. Provide a separation between window frame and stucco, to be filled with backer rod and primary polyurethane sealant. New vertical control joins shall be saw-cut %" deep into the block at a maximum of every 18 feet to delineate a maximum of 144 sq. ft. at all masonry walls to be filled with backer rod and sealant. Perform tap test on masonry walls and remove and replace any loose stucco (assume 5% of wall area). Sandblast dash-bond coat off stucco at one-third of all buildings. Apply proper color coat and paint. panna nn nn nnn nn nnn nnn nn nnn 16 MARCON FORENSICS, LLC Marcon Job No. 20004 Villas at Emerald Lake April 2, 2021 4.0 FLOORS 4.03 Slab on Grade 4.0301 Uncontrolled cracking of concrete slab. . 2010 FRC R506.2.4 o The lack of control joints in the floor slab is resulting in uncontrolled cracking that is telegraphing through and cracking the floor tile. a Synopsis (Slab on Grade): The aggregate effect of the code violation/construction defect listed above has contributed to the uncontrolled cracking of the interior slabs and floor tile. For all buildings constructed under the 2101 FRC only, remove alll floor finishes from entire first-floor living areas. Epoxy pressure-inject all concrete slab cracks (including Garage). Replace flooring and coat Garage floors. ee 5.0 STRUCTURAL 5.01 Shear Walls 5.0101 Shear Wall Edge Nailing. . 2010/2014 FBC 107.4 o The Shear Wall Edge Nailing at one out of two locations tested was less than required by the approved plans (4” o/c, Section 3/8). This results in a more flexible building that will sway more in heavy winds, causing additional stucco cracking. 5.0103 Shear Wall nail size. . 2010/2014 FBC 107.4 o At alll fifteen locations where this condition was tested, the nails used were smaller in size than required by the approved plans (8d commons at 4” o/c, Sheet GEN, WOD SHEATHING ATTACHMENTS and NOTE under Simpson Note). This results in a more flexible building that will sway more in heavy winds, causing additional stucco cracking. 5.0132 Missing hurricane strap. . 2010/2014 FBC 107.4 o At two locations tested for this condition, Simpson SP4 straps called for in Section 3/8 were not installed. This 17 MARCON FORENSICS, LLC Marcon Job No. 20004 Villas at Emerald Lake April 2, 2021 results in a more flexible building that will sway more in heavy winds, causing additional stucco cracking. 5.02 Diaphragms 5.0205 Floor Boundary Nailing. . 2010/2014 FBC 107.4 o At two locations tested for this condition, no Boundary Nailing was observed along the edge of the floor sheathing to the rim truss (6” o/c, Section 3/8). This does not provide for a complete load path and results in a more flexible building that will sway more in heavy winds, causing additional stucco cracking. 5.03 Framing 5.0301 Untreated wood in contact with concrete masonry. . 2010/2014 FBC 107.4 o At one of two locations tested for this condition, no isolation was provided between the untreated wood of the edge truss and the concrete masonry (Section 3/8). This does not provide protection for the wood against decay. a Synopsis: The aggregate effect of the code violations listed above has resulted in buildings more susceptible to sway. Coordinate repairs with the repairs in the Walls section. At all building shear walls remove wall sheathing 48 inches high centered on the second-floor line. Install new 16d common nails at 8 inches o/c through the second-floor sill plate, through the floor diaphragm and into the rim truss/rim board. Replace removed sheathing, blocking all edges. Re-nail all exterior wall sheathing panel edges and Edge Nail transfer locations with 8d at 6” o/c). Install new Simpson SP4 straps centered on the second floor at every wall stud. Inspect all rim truss/rim board locations for missing isolation between untreated wood and masonry. Where missing, jack up rim truss/rim board and insert stucco backing strips between the rim truss/rim board and the top of the masonry (assume 50% of all locations). Set rim truss/rim board back down on masonry wall. a 18 MARCON FORENSICS, LLC Marcon Job No. 20004 Villas at Emerald Lake April 2, 2021 9.0 SITEWORK 9.02 Landscaping 9.0230 Insufficient/lack of proper drainage adjacent exterior wall. . 2010/2014 FRC: R401.3 o Poor drainage has caused erosion next to building walls. panna nn nn nnn nn nnn nnn nn nnn Synopsis: The effect of the defect listed above violates the requirements of the building code and standards of care, and has contributed to damage to the site landscaping. (Landscaping): Regrade drainage adjacent buildings and entry walks to drain away from foundation and re-landscape. nen IDG HOMES 1.0 ROOFS 1.01 Asphalt Shingles 1.0101 Lack of 4-inch roof cement over drip edge flange. . 2004 FRC: R905.2.8.5 o At two out of three roofs tested for this condition, the required 4-inch wide strip of sealant from the eave flange to the underlayment was insufficiently placed. This allows water to penetrate and damage the roof sheathing. 1.0102 Shingles do not overhang eave. . 2004 FRC: R903.1 o Atall roofs tested (three out of three locations), shingles do not overhang eave minimum 1/2”, nor are they trimmed flush with the “D: style eave flashing. This allows water to penetrate along the eave and damage the roof sheathing. 1.0105 Starter shingles nailed through eave flashing. . 2004 FRC: R903.1 o At two out of two roofs tested for this condition, the starter strip fasteners were installed less than 3 inches from the edge of the roof, creating an unsealed 19 Exhibit “B” 36 A. Correct. But if you want to talk about the costs, you can speak with me about that. (Marked for Identification as Deposition Exhibit No. 27.) BY MR. WALLS: Q. Let me show you what I'll mark as Exhibit 27 to this deposition. Do you recognize this document? A. I do. Q. What is it? 10 A. It is my cost of repair for the scope found in 11 the Marcon report. 12 Q. For the Royal Oak Homes? 13 A. Correct. 14 Q. And does this include all of your opinions 15 that you plan to testify to at trial regarding the cost? 16 A. At the present time. 17 Q. And does it include the reasons for your 18 opinions that you plan to testify at trial? 19 A. I don't understand that question. Sorry. 20 Q. Well, to understand your opinions, we're going 21 to walk through this Exhibit 27. Is there any other 22 document I should be walking through to understand the 23 reasons for yo