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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
limited liability 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
HUGH MACDONALD CONSTRUCTION, PLAINTIFF’S LACK OF
INC., a Florida corporation; IMPERIAL STANDING AS TO ROOF-
BUILDING CORPORATION, a Florida RELATED CLAIMS
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;
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EXPERT PAINTING & PRESSURE
WASHING, INC., a Florida corporation;
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.
/
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WEATHERMASTER BUILDING
PRODUCTS,
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 PLAINTIFF’S
LACK OF STANDING FOR ROOF-RELATED CLAIMS
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 all claims asserted by Plaintiff, the Villas at Emerald Lake
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Homeowners Association, Inc. (the “Association”), with respect to the townhome
roofs because the Association does not own and admittedly is not responsible for
maintaining the townhome roofs, and therefore, the Association lacks standing to
assert claims for damages for alleged defects in them. 1
I. INTRODUCTION
The Association filed this action as the representative of the Association
members who own the Villas at Emerald Lake townhomes pursuant to Section
720.303(1), Florida Statutes, and Rule 1.221, Florida Rules of Civil Procedure.
Section 720.303(1) and Rule 1.221 provide homeowners associations the right to sue
on their members’ behalf only for those roofs, structural components of a building,
or other improvements for which the Association is responsible. Fla. Stat. § 720.303
(2020); Fla. R. Civ. P. 1.221 (2020).
1
Royal Oak is separately moving for partial summary judgment on the Association’s claim for
breach of alleged implied warranties and consequential damages against Royal Oak because those
claims are barred as a matter of law by the express terms of the purchase agreements between
Royal Oak and the townhome owners. The express warranties and inclusive disclaimers of all
implied warranties in the townhome owners’ contracts with Royal Oak extinguish any other basis
for the Association to sue on the townhome owners’ behalf with respect to the townhome roofs.
Royal Oak is also separately moving for partial summary judgment on the Association’s claims
for (1) negligence because the Association’s claims are barred as a matter of law by the economic
loss rule; and (2) violation of Section 553.84 because the alleged defects are merely technical in
nature resulting in no present damage as required by Section 553.84. With respect to the alleged
defects in the townhome roofs, the Court need not reach these other grounds for summary judgment
if the Court finds, as it should, that the Association does not have standing with respect to the
claims for those alleged roof defects.
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The Association’s claims include damages for alleged defects in the design
and construction of the roofs of the Royal Oak townhomes at the Villas at Emerald
Lake. The Association does not own and is not responsible to maintain the
townhome roofs under the Declaration of Covenants and Restrictions of the Villas
at Emerald Lake (the “Declaration”) and the First Amendment to the Declaration of
Covenants and Restrictions of the Villas at Emerald Lake (the “First Amendment”).
Electronically certified copies of the Declaration and First Amendment from the
Osceola County Clerk of the Circuit Court are attached as Exhibits A and B,
respectively. 2
Only the homeowners are responsible for maintaining the roofs under the
Declaration and First Amendment. The First Amendment specifically provides that
the townhome owners are “responsible for repair and replacement of all roof
damaged (sic) caused by anything other than normal wear and tear.” (emphasis
added). The Association does not own the townhomes and is not responsible for
2
The Association admitted through its corporate representative, Randall Treadwell, that the
Declaration and the First Amendment, respectively, were true and correct copies recorded by and
maintained by the Association and that the Association had read them, was familiar with them,
and acknowledged they were the Association’s “rules and procedures for the Community.”
(Deposition of Randall Treadwell, Vol. I, April 11, 2023 (“Assoc. Corp. Rep. Dep.”) 11:12-25, 12:1-
12, Ex. 122; Id., Vol. II, 152:15-25; 153:1-24; 160:22-25, 161:1-21; Dep. Exs. 143, 144). The
excerpts and exhibits from the Mr. Treadwell’s deposition cited in this Motion are attached as
Composite Exhibit C (Exhibits 143 and 144 are not included in Composite Exhibit C because
they are duplicative of Exhibits A and B, the Declaration and First Amendment). Mr. Treadwell’s
full deposition transcript and all of the cited exhibits were filed separately with the Court.
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maintaining their roofs. The Association admittedly told townhome owners this in
2018, well before this lawsuit was filed in November 2020, explaining that the owners
were responsible for “interim repairs and maintenance,” and needed their own
insurance coverage for their roofs, because the Association was only responsible for
“long term replacement of the roofs.” (Assoc. Corp. Rep. Dep., 146:24-25; 147:1-2;
13-21; Dep. Ex. 142). The Association maintains reserves for this express purpose.
As a matter of Florida law, the Association therefore lacks standing to seek damages
for any claim for alleged defects to the townhome roofs.
II. STATEMENT OF UNDISPUTED FACTS
1. The Association sues Royal Oak for damages for the alleged negligent
and defective construction of the roofs, among other construction components, of
the Royal Oak townhomes at the Villas at Emerald Lake. See Second Amended
Complaint, ¶¶ 1, 49, 50, A-F.3
2. The Association alleges that it is responsible for maintenance and repair
of the roofs of the Royal Oak townhomes. Id. at ¶ 44.
3. The Declaration, as amended by the First Amendment, however, requires
each “Parcel Owner” to maintain, repair, and replace the roofs of his or her townhome.
3
The Association further sued Royal Oak’s subcontractors who performed or inspected this work at
the Villas at Emerald Lake for these same alleged defects. Id., ¶¶ 52-58, 60, Counts X-XXII, XXVI-
XXVII.
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See First Amendment attached as Exhibit B, at ¶ 7.2 (emphasis added). The First
Amendment provides, in relevant part:
7.2 Owner Maintenance. Parcel Owners shall maintain,
repair and replace in a safe, clean, orderly and attractive
condition those portions of the Parcel, Living Unit and any
other improvements located thereon. Parcel Owners are
responsible for all window repairs and screen repairs.
Parcel Owners are also responsible for repair and
replacement of all roof damaged (sic) caused by
anything other than normal wear and tear. …
See First Amendment attached as Exhibit B, at ¶ 7.2 (emphasis added).
4. Each townhome owner is a “Parcel Owner” under the Declaration.
(Assoc. Corp. Rep. Dep., 164:1-11). See also, Declaration, 4 Ex. A, at ¶ 1.14
(defining “Parcel” as “one or more of the 88 platted parcels of land” in the Villas at
Emerald Lake upon which a “Living Unit” is constructed); Ex. A, at ¶ 1.13 (defining
“Living Unit” as “any or all of the residences which will be constructed on the
Parcels….”) (emphasis added)).
5. Each townhome is owned in fee simple by its individual townhome
owner. See Second Amended Complaint, at ¶ 43. The Association does not own
any of the townhomes. Id.
4
The First Amendment provides that, except as specifically amended in the First Amendment, the
Declaration “shall remain in full force and effect in its original form.” See First Amendment, Ex.
B, at ¶ 5. The First Amendment made no changes to the Declaration definitions.
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6. The Association, which is not a Parcel Owner, is not responsible for
maintaining or repairing any townhome roof. See First Amendment, at ¶ 7.2. The
Association’s only responsibility for the townhome roofs is to replace them for
“normal wear and tear,” meaning at the end of their useful lives. Id.; (Assoc. Corp.
Rep. Dep., 164:23-25; 165:1-4).
7. The Association advised the townhome owners at the 2018 Association
Board meeting that they needed to obtain insurance for any damage to their own
roofs for any reason in order to repair or replace them. (Id., at 151:16-22; 152:3-14;
170:13-20; Dep. Ex. 142).
8. The Association maintained reserves for “future major replacements,”
and specifically identified “replacement” as the purpose of reserves for roofs in the
Association’s reserve calculations. (Id., at 38:13-15; 256:17-25; 257:1-13; 258:24-
215; 259:1; Dep. Ex. 166).
III. LEGAL STANDARD: STANDING AND SUMMARY JUDGMENT
A. Standing.
Standing is an issue of law. Daytona Beach Kennel Club, Inc. v. Dep’t of Bus.,
33 So. 3d 799 (Fla. 5th DCA 2010). “To satisfy the requirement of standing, the
plaintiff must show that a cause or controversy exists between the plaintiff and
defendant, and that such cause or controversy continues from the commencement
through the existence of the litigation.” Ferreiro v. Philadelphia Indem. Ins. Co.,
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928 So. 2d 374, 378 (Fla. 3d DCA 2006). The plaintiff must have standing to sue
for all claims asserted at the inception of the case. Progressive Exp. Ins. Co. v.
McGrath Community Chiropractic, 913 So. 2d 1281, 1285 (Fla. 2d DCA 2005); see
also LaFrance v. U.S. Bank Nat. Ass’n, 141 So. 3d 754, 756 (Fla. 4th DCA 2014).
When a plaintiff lacks standing, summary judgment is the appropriate remedy. See
e.g., Nedeau v. Gallagher, 851 So. 2d 214, 216 (Fla. 1st DCA 2003) (“The
appellants’ lack of standing was a fatal deficit and we therefore uphold the adverse
summary judgment.”).
B. Summary Judgment.
As of May 1, 2021, Florida follows the new summary judgment standard.
That summary judgment standard must be construed and applied in accordance with
the federal summary judgment standard. In re Amendments to Fla. R. Civ. P. 1.510,
No. SC20-1490, 2021 WL 1684095, at *1 (Fla. Apr. 29, 2021) [hereinafter
“Amendments”]. 5
“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.” Chapman v. AI Transp., 229 F.3d 1012, 1023
5
The amended rule adopts the standard “articulated by the United States Supreme Court 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 (1986)”. Amendments, 2021 WL
1684095, at *1.
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(11th Cir. 2000); Celotex, 477 U.S. at 322–23; Fla. R. Civ. Pro. 1.510(a) (2021).
This standard mirrors the directed verdict standard. Amendments, 2021 WL
1684095, at *2 (“First, 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 this
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).
This standard applies to an issue that is part of a claim. Fla. R. Civ. Pro.
1.510(a) (“A party may move for summary judgment, identifying each claim or
defense – or the part of each claim or defense – on which summary judgment is
sought.”) (emphasis added). See also, e.g., Amelco Inv. Corp. v. Bryant Elec. Co.,
487 So. 2d 386, 387 (Fla. 1st DCA 1986) (approving trial court’s entry of partial
summary judgment on a one-count complaint for damages based upon unpaid
invoices, finding that the statute of limitations barred several of the invoices, but
leaving two invoices pending); Dixon v. Allstate Ins. Co., 609 So. 2d 71, 72 (Fla. 1st
DCA 1992) (dismissing appeal of order granting “partial Summary Judgement as to
the Plaintiffs' dwelling and debris removal claim” and reserving jurisdiction on any
and all other matters, as a non-appealable non-final order).
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To avoid summary judgment, the nonmoving party 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)).
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. 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.
The undisputed evidence demonstrates that the Association lacks standing as
a matter of law to sue Royal Oak for defects in the townhome roofs because the
Association neither owns nor is responsible to maintain and repair them. Royal Oak
is therefore entitled to summary judgment in its favor on the Association’s claims
for alleged defects in the townhome roofs.
IV. THE ASSOCIATION LACKS STANDING TO SUE ROYAL OAK FOR
ALLEGED ROOF DEFECTS BECAUSE THE ASSOCIATION DOES
NOT OWN THE TOWNHOMES OR HAVE THE OBLIGATION TO
REPAIR OR MAINTAIN THEM.
The Association’s “power and duties” are set forth in Chapter 720 and “the
governing documents.” §720.303(1), Fla. Stat. The relevant governing document is
the Declaration, as amended, because it establishes the maintenance and repair
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obligations of the Association and its members, the townhome owners.6
§§720.301(8)(a), 720.303(1), Fla. Stats. Neither the Declaration, as amended, nor
Chapter 720 provide the Association standing to sue Royal Oak for alleged damages
for alleged defects in the roofs of the townhomes owned by the Association’s
members.
A. The Declaration, as Amended, Makes the Townhome Owners
Responsible for Maintenance and Repair of the Roofs of their
Townhomes.
The First Amendment provides that the townhome owners are responsible for
maintaining and repairing their townhome roofs. See First Amendment, Ex. B, at ¶
7.2. The First Amendment expressly states the Parcel Owners are “responsible for
repair and replacement of all roof damaged (sic) caused by anything other than
normal wear and tear.” Id. (emphasis added).
The Declaration defines “Parcel” to mean “one or more of the 88 platted parcels
of land … upon each of which a Living Unit is intended to be constructed. … .” Id. at
¶ 1.14. “Living Unit” is defined as “any or all of the residences which will be
constructed on the Parcels, each intended for use and occupancy as a residence for a
Single Family.” Id., at ¶ 1.13. The townhome roofs are “portions of the Parcel,” i.e.
“Living Unit” and, thus, “residences” constructed on the “88 platted parcels of land”
6
The governing documents also include the Association’s articles of incorporation, bylaws, and
rules and regulations. §720.301(8)(b), (c), Fla. Stat. None of these additional governing documents
have any bearing on this motion.
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in the Villas at Emerald Lake “for use and occupancy as a residence for a Single
Family.” Id. “Single Family Residence” means “a Living Unit which is restricted to
occupancy only by the owner … and their family, guests, and tenants as further
provided herein.” Id., at ¶ 1.21. The townhome owners, therefore, must maintain and
repair their townhome roofs. See Fern v. Eagles’ Reserve Homeowners’ Ass’n, Inc.,
162 So. 3d 257, 261 (Fla. 2d DCA 2015) (holding that, unlike a condominium, the
outer surfaces of a townhome are owned in fee simple by the townhome owner). They
are expressly responsible for maintenance and repairs for alleged defects in their roofs.
The First Amendment makes clear that maintenance and repair of the
townhomes roofs is the financial responsibility of each townhome owner and not an
Association common expense shared by all Association members. See First
Amendment, Ex. B, at ¶ 7.1. The Association and its member townhome owners are
governed by and must comply with the Declaration, as amended. §720.305(1), Fla.
Stat. (“Each member … and each association, are governed by, and must comply with,
this chapter, the governing documents of the community, and the rules of the
association. … .”). Cf, The Fountains of Palm Beach Condo., Inc. No. 5 v. Farkas,
355 So. 2d 163, 164 (Fla. 4th DCA 1978) (noting that the same provision under
Section 718.303(1) mandates that unit owners shall be governed by the Declaration).
To this end, the Declaration must be strictly construed. Id.; see also Shores of Panama
Club, LLC. v. Shores of Panama Resort Community Ass’n, Inc., 204 So. 3d 541, 543
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(Fla. 1st DCA 2016); Curci Village Condo. Ass’n., Inc. v. Maria, 14 So. 3d 1175, 1177
(Fla. 4th DCA 2009).
The Declaration, as amended, when strictly construed by its express terms,
demonstrates that the Association lacks standing to sue Royal Oak for alleged defects
in the townhome roofs. See Strathmore Gate-East at Lake St. George Homeowners’
Ass’n, Inc. v. Levitt Homes, Inc., 537 So. 2d 657, 658 (Fla. 2d DCA 1989) (finding
that a homeowners’ association’s standing to assert construction defect claims was
dependent upon its ownership and maintenance of common areas under its
declaration). As a result, Royal Oak is entitled to summary judgment on the
Association’s claims for alleged damages for alleged defects to the roofs of the Royal
Oak townhomes.
B. The Association Cannot Argue that its Claims are Premised upon
Alleged Defects to Townhome Improvements for which the
Association is Not Responsible as a Matter of “Common Interest”
under Section 720.303, Florida Statutes, and Rule 1.221, Florida
Rules of Civil Procedure.
Section 720.303, Florida Statutes, and Rule 1.221, Florida Rules of Civil
Procedure, provide the Association with a limited right to sue for matters of common
interest for which the Association is responsible. Section 720.303(1), Florida Statutes,
provides, in pertinent part, that homeowner associations may sue on behalf of
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
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improvements for which the association is responsible; … .” § 720.303, Fla. Stat.
(emphasis added). The Association lacks standing to bring the claims premised on
alleged defects in the “roofs” of the townhome buildings because the Association
must be responsible for them to have standing to bring the claims.
Rule 1.221 makes even clearer that the Association cannot sue on behalf of
the common interests of its owner members if the Association is not responsible for
the building improvements at issue. The Rule provides, in pertinent part, that a
homeowners’ association may institute an action on behalf of its members
“concerning matters of common interest” for the roof, structural components, or
other building improvements “specifically limited to those improvements for which
the association is responsible.” Fla. R. Civ. Pro. 1.221 (emphasis added). The
Association cannot sue on behalf of its members for damages for defects in
improvements that the Association is not responsible for in the Declaration, like
townhome roofs.
Chapter 720, Florida Statutes, and Rule 1.221, Florida Rules of Civil
Procedure, do not define the term “responsible.” In such cases, where the legislature
does not define words in a statute, the words should be given their plain and ordinary
meaning, and dictionary definitions can be used to ascertain that meaning. Shepard
v. State, 259 So. 3d 701, 705 (Fla. 2018) (where word was not defined by statute
holding it was “appropriate to refer to dictionary definitions when construing statutes
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to ascertain the plain and ordinary meaning of words used there.”) (internal citations
omitted); The School Board of Palm Beach County v. Survivors’ Charter Schools,
Inc., 3 So. 3d 1220, 1233 (Fla. 2009) (same). The plain and ordinary meaning of the
word “responsible” based on the dictionary definition is an improvement for which
the Association is “liable to be called on to answer.” See Merriam-Webster at
https://www.merriam-webster.com/dictionary/responsible (2023). To determine
what building improvements the Association is “liable to be called on to answer” for
to its members one must turn to the Declaration.
The Association does not have standing to sue Royal Oak for claims based on
alleged damages for alleged defects to roofs of the Royal Oak townhomes because
the Association is not “liable to be called on to answer” for maintenance and repair of
them. As demonstrated above, under the Declaration and First Amendment, the
Association is not responsible for maintenance and repair of any of the townhome
roofs. See First Amendment, Ex. B, at ¶¶ 7.2, 7.1.
The Association cannot otherwise base its claims on the general “common
interests” under Section 720.303 and Rule 1.221. The general statutory authorization
to sue on behalf of “common interests” cannot extend to interests expressly excluded
from that authorization by specific statutory language in the same statute, i.e.
improvements for which the Association is not responsible. To construe “common
interests” to mean “improvements” for which the Association is not responsible
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requires this Court to extend or modify the express terms of Section 720.303, Florida
Statutes, which the Court cannot do. See Holly v. Auld, 450 So. 2d 217, 219 (Fla.
1984) (stating that “a statute must be given its plain and obvious meaning” and courts
are “without power to construe an unambiguous statute in a way which would extend,
modify or limit its express terms or its reasonable and obvious implications”).
It is an “elementary principle” of statutory construction “that significance and
effect must be given to every word, phrase, sentence and part of the statute” and
“words in a statute should not be construed as mere surplusage.” The School Board of
Palm Beach County, 3 So. 3d at 1233. The construction of Section 720.303 that gives
effect to every word and phrase is that the Association may sue on matters of
“common interest” involving “improvements” only for those “improvements” for
which the Association is responsible for, or liable to be called to answer for,
maintenance and repair under the Declaration.
The same result is obtained under the well-recognized principle of statutory
construction that a specific provision controls over a general provision: “It is well
established that, where there is in the same statute a specific provision, and also a
general one that in its most comprehensive sense would include matters embraced in
the former, the particular provision will nevertheless prevail,” and the “general
provision must be taken to affect only such cases as are not within the terms of the
particular provision.” Fletcher v. Fletcher, 573 So. 2d 941, 942 (Fla. 2d DCA 1991);
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see Psychiatric Institute of Delray, Inc. v. Keel, 717 So. 2d 1042, 1043 (Fla. 4th DCA
1998).
Section 720.303 generally authorizes the Association to sue on behalf of
“common interests” and specifically authorizes the Association to sue on behalf of
“common interests” for “roof or structural components” and “other improvements for
which the Association is responsible.” § 720.303, Fla. Stat. The specific authorization
controls here because the Association’s claims in this action concern townhome
building “roofs.” Psychiatric Institute of Delray, Inc., 717 So. 2d at 1043; Fletcher,
573 So. 2d at 942.
This construction of Section 720.303 makes sense. The Association is not
responsible under the Declaration for maintenance and repair of the roofs of the
townhomes, but it, nevertheless, seeks damages for alleged defects to these building
improvements. Any damages awarded for such alleged defects, then, goes to the
Association and not to the townhome owners who are actually responsible for the
maintenance and repair of these roofs under the Declaration, as amended. Such a
result is not sanctioned under the express terms of Section 720.303 that preclude the
Association from suing for alleged damages for defects to building improvements
the Association is not responsible to maintain or repair under the Declaration and
First Amendment.
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V. CONCLUSION.
For all the reasons stated above, Royal Oak is entitled to partial summary
judgment in its favor and against the Association on the Association’s alleged roof
defect claims because the Association lacks the necessary standing to sue Royal Oak
for the alleged defects to the Royal Oak townhome roofs under the Declaration and
Section 720.303 and Rule 1.221.
WHEREFORE, Defendant/Crossclaim Plaintiff, Royal Oak Homes, LLC,
respectfully requests the Court enter an order granting Royal Oak Homes, LLC’s
Motion for Partial Summary Judgment against the Association on its negligence and
vicarious liability and building code violation claims for lack of standing to sue for
alleged damages for alleged defects to Royal Oak townhome roofs, and granting such
other and further relief as this Court deems just and proper.
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
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Telephone: (813) 223-7000
Facsimile: (813) 229-4133
mwalls@carltonfields.com
lprats@carltonfields.com
rleavengood@carltonfields.com
anordman@carltonfields.com
slambe@carltonfields.com
ffoley@carltonfields.com
fgonzalez@carltonfields.com
Attorneys for Defendant, Royal Oak Homes,
LLC
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 E-filing Portal, which
will electronically serve this document to all registered counsel of record.
/s/ James Michael Walls
Attorney
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Exhibit “A”
Electronically Certified Official Record
(Cover Page)
This cover page is for informational purposes only and is not a requirement when presenting the
Electronic Certified Document. Directly below the cover page, at the bottom of page 1, you will find
the digital signature bearing the identity and authority of the Clerk. On the left side of each page is
a unique code identifying the electronic certification for this document.
Agency Name: Osceola County Clerk of the Circuit Court
Clerk of the Circuit Court: The Honorable Kelvin Soto, Esq.
Date Issued: 5/17/2022 1:47:16 PM
Unique Reference Number: BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J
Instrument Number: 2007207314
Requesting Party Code: 100
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Date: 2022.05.17 13:47:16 -04:00
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Exhibit “C”
11
1 understand, will you please let me know so I can
2 rephrase it?
3 A. Yes, sir.
4 Q. Otherwise, I'm going to assume you understood
5 the question; is that fair?
6 A. Yes, sir.
7 Q. And if you don't know the answer to a
8 question, please just tell me you don't know and we'll
9 move on. I understand you may need breaks. If you need
10 a break at any time, let me know. We'll take a
11 five-minute break or ten-minute break as needed.
12 MR. WALLS: And with that, I'll go to our
13 first exhibit, which I believe, Madame Court
14 Reporter, we're on Exhibit 122.
15 THE REPORTER: That's what I was told.
16 (Exhibit 122 marked for identification.)
17 Q (By Mr. Walls) So this is Exhibit 122, the
18 Notice of Taking Deposition of Plaintiff's Corporate
19 Representative.
20 Mr. Treadwell, have you seen this document?
21 A. I have.
22 Q. Did you review it?
23 A. Yes, sir.
24 Q. Did you review Exhibit A to this document?
25 A. Please go to Exhibit A.
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12
1 Q. Yes.
2 A. Yes, sir.
3 Q. And are you the corporate representative for
4 the Villas at Emerald Lake Homeowners Association,
5 Incorporated, for all the topics listed in Exhibit A to
6 Exhibit 122?
7 A. Yes, sir.
8 Q. And you understand that the answers you
9 provide to the questions today are on behalf of the
10 Villas at Emerald Lake Homeowners Association, Inc., and
11 bind the association; is that right?
12 A. Yes, sir.
13 Q. Now, when I refer to the association during
14 the course of this deposition, will you understand that
15 I mean the Villas at Emerald Lake Homeowners
16 Association, Inc.?
17 A. I will.
18 Q. And I may refer to "project" or the
19 "townhomes." Will you understand that I mean the Villas
20 at Emerald Lake townhomes?
21 A. Yes. Yes, sir.
22 Q. And before we get to some more questions, I
23 have some back- -- or more exhibits, I have some
24 background questions for you.
25 What did you do to prepare for this
Legal Realtime Reporting
38
1 this association, what information did you rely on to
2 prepare that budget?
3 A. Which one?
4 Q. The one for the association at any time. What
5 were you looking at to determine their budget?
6 MS. JOYCE: Form.
7 THE WITNESS: Still answer?
8 MS. JOYCE: Yeah. You can answer.
9 A. Look at historical trends, what are the
10 averages for utilities, trash, what are the known costs
11 for future major replacements, and then any planned
12 repairs, tree trimmings, any future work.
13 Q (By Mr. Walls) You said future major
14 replacements, what do you mean by that?
15 A. I referred to that as the reserve items.
16 Q. How were the reserve items determined for the
17 association?
18 A. In this case, I believe it was the numbers
19 turned over by the developer to the association.
20 Q. During the course of your work for the
21 association as a community association manager, did you
22 ever undertake any action to update the reserves for
23 future major replacements?
24 A. No, sir.
25 Q. Are you familiar with companies that do
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1 Did I read that correctly?
2 A Yes.
3 Q What does that mean?
4 A It means --
5 MS. JOYCE: Form.
6 A It means we posted a notice at least 48 hours
7 in advance of the meeting on the property.
8 Q (By Mr. Walls) November 27, 2018, isn't this
9 the same date you signed the agreement with Blue Water
10 Community Management that we marked previously as
11 Exhibit 128?
12 A I would have to see that exhibit to recall the
13 dates.
14 Q Let me show you what was previously marked as
15 Exhibit 128. It doesn't look like the date is in the
16 first paragraph, but let me go down. Do you see the
17 signature page?
18 A I do.
19 Q Isn't that November 27, 2018?
20 A It is.
21 Q And that is your signature, right, as the
22 witness; right?
23 A Correct.
24 Q That's the same date as the Management
25 Agreement, right -- I'm sorry, the same date as the
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1 board meeting that I just showed you?
2 A Yes.
3 Q Let me go back to the board meeting minutes.
4 And if we go down to item six, do you see that
5 number, discussion on agenda items?
6 A I see it.
7 Q And by member discussion, that means that
8 members were present at this board meeting?
9 A Yes.
10 Q And is item six a true summary of the
11 discussion that occurred on November 27, 2018?
12 A Yes.
13 Q I want to direct your attention to the third
14 sentence there in item six of Exhibit 142 where it says,
15 quote, Mr. Treadwell explained to the members that they
16 needed to speak with their individual insurance agents
17 and make sure they had roof coverage. He explained that
18 the HOA only had responsibility for the long-term
19 replacement of the roofs and not interim repairs and
20 maintenance. Did I read that correctly?
21 A Yes.
22 Q And by this, you mean that the association was
23 not responsible for interim repairs or maintenance of
24 the roofs; right?
25 MS. JOYCE: Form.
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151
1 engaged. I was just assigned to the association.
2 Q (By Mr. Walls) Well, I understand that,
3 Mr. Treadwell, but you also told me that you believe
4 that generally accepted industry standards of the
5 community association management required honest advice
6 and direction to the board?
7 A That is correct.
8 Q Did you believe in 2018 when you made these
9 statements reflected in item six on Exhibit 142 that you
10 were providing the Board and its members honest and
11 direct advice?
12 A That's a two-part answer. One, you are
13 referring to a different contract than the association
14 management company. But I always believe that I am
15 giving the best and honest advice to my clients.
16 Q And were you giving the best and honest advice
17 to your clients when you made this statement to the
18 members and the board identified in item six in Exhibit
19 142 in November of 2018?
20 MS. JOYCE: Form.
21 A Yes. But I wanted to clarify that I was not
22 the corporate representative in 2018.
23 Q (By Mr. Walls) Well, I understand that.
24 A I need to clarify, because you had said when
25 we started this that I was the corporate rep, and you
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152
1 referenced this. And that time, I was not the corporate
2 rep.
3 Q I understand you were not the corporate rep in
4 November '18, but you are the corporate rep today;
5 right?
6 A Correct.
7 Q And as the corporate rep, you are relying on
8 the knowledge, not only of the association and the
9 documents, but your own knowledge; right?
10 A That is correct.
11 Q The knowledge includes your knowledge of why
12 you made these statements to the board in November of
13 2018 identified in Exhibit 142; correct?
14 A Yes.
15 MR. WALLS: Let me show you what we will mark
16 as Exhibit 143.
17 (Exhibit No. 143 because marked for
18 identification.)
19 Q (By Mr. Walls) You will see on the first page
20 of this 35-page document, it says in the right-hand
21 column EmeraldHOA 007019; do you see that?
22 A I see it.
23 Q That was provided by the association to us.
24 Is this a true and correct copy of the Declaration of
25 Covenants and Restrictions of the Villas at Emerald
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1 Q The next sentence in 7.1 in this first
2 amendment marked as Exhibit 144 says, the association is
3 responsible for the protection, maintenance, repair, and
4 replacement of the common areas, including without
5 limitation, all neighborhood entranceway, roadways, and
6 exterior landscaping; correct?
7 A That's what it says.
8 Q And then it goes on to say that the
9 association is responsible for the following on all
10 living units, meaning townhomes; right?
11 A Correct.
12 MS. JOYCE: Form.
13 Q (By Mr. Walls) In there is says, lawn
14 maintenance, trimming of all trees and shrubs, exterior
15 irrigation, all exterior painting of buildings, termite
16 protection, and normal wear and tear on the roof; right?
17 A That is what it says.
18 Q And that's the limit of the association's
19 responsibility for maintenance of the individual
20 townhomes; correct?
21 MS. JOYCE: Form.
22 A According to this, yes.
23 Q (By Mr. Walls) And would you agree that normal
24 wear and tear of the roofs means that the association
25 was only responsible for replacement of the roofs at the
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165
1 end of their useful lives?
2 MS. JOYCE: Form.
3 A Yes. But the useful life had to be
4 determined.
5 Q (By Mr. Walls) And how is that useful life of
6 the roofs determined?
7 A There would be a few different ways that could
8 be done.
9 Q How did the association here do it?
10 A The current life cycle would be what was
11 turned over by the developer to say, hey, this is
12 suppose to be a 500-year roof, or whatever the number
13 is. I would caveat that to say that a useful life cycle
14 by a manufacturer installer should be, would be
15 mitigated or destroyed if it wasn't properly installed.
16 Q Where did you get the useful life here, was it
17 based on what you have for the association reserves; is
18 that correct?
19 A Yeah. Whatever the life cycle was when the
20 information was turned over, to my knowledge, that has
21 not been updated. To update a contribution life
22 cycle -- well, according to the statutes, the board
23 could be defined, but I would either encourage the board
24 to do a reserve study, which is a third-party
25 engineering. They come in and determine life cycle
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1 repairs; correct?
2 MS. JOYCE: Form.
3 A That's what it says.
4 Q (By Mr. Walls) That means the homeowners are
5 responsible for all window repairs; correct?
6 MS. JOYCE: Form.
7 A Again, that's what it says.
8 Q (By Mr. Walls) And then it says, quote, parcel
9 owners are also responsible for repair and replacement
10 of all roof damage caused by anything other than normal
11 wear and tear; correct?
12 A That's what it states.
13 Q Is that another reason for the basis for your
14 opinions that you provided the board members and the
15 members who were present at the November 2018 meeting,
16 that the association was responsible only for
17 replacement of the roofs at the end of their useful
18 life?
19 MS. JOYCE: Form.
20 A That would probably have been it, yes.
21 Q (By Mr. Walls) Mr. Treadwell, I will show you
22 what is marked Exhibit 145.
23 (Exhibit No. 145 was marked for
24 identification.)
25 Q (By Mr. Walls) This is the Second Amendment to
Legal Realtime Reporting
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 limited liability 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 HUGH MACDONALD CONSTRUCTION, PLAINTIFF’S LACK OF INC., a Florida corporation; IMPERIAL STANDING AS TO ROOF- BUILDING CORPORATION, a Florida RELATED CLAIMS 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; 1 134959627.1 EXPERT PAINTING & PRESSURE WASHING, INC., a Florida corporation; 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. / 2 134959627.1 WEATHERMASTER BUILDING PRODUCTS, 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 PLAINTIFF’S LACK OF STANDING FOR ROOF-RELATED CLAIMS 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 all claims asserted by Plaintiff, the Villas at Emerald Lake 3 134959627.1 Homeowners Association, Inc. (the “Association”), with respect to the townhome roofs because the Association does not own and admittedly is not responsible for maintaining the townhome roofs, and therefore, the Association lacks standing to assert claims for damages for alleged defects in them. 1 I. INTRODUCTION The Association filed this action as the representative of the Association members who own the Villas at Emerald Lake townhomes pursuant to Section 720.303(1), Florida Statutes, and Rule 1.221, Florida Rules of Civil Procedure. Section 720.303(1) and Rule 1.221 provide homeowners associations the right to sue on their members’ behalf only for those roofs, structural components of a building, or other improvements for which the Association is responsible. Fla. Stat. § 720.303 (2020); Fla. R. Civ. P. 1.221 (2020). 1 Royal Oak is separately moving for partial summary judgment on the Association’s claim for breach of alleged implied warranties and consequential damages against Royal Oak because those claims are barred as a matter of law by the express terms of the purchase agreements between Royal Oak and the townhome owners. The express warranties and inclusive disclaimers of all implied warranties in the townhome owners’ contracts with Royal Oak extinguish any other basis for the Association to sue on the townhome owners’ behalf with respect to the townhome roofs. Royal Oak is also separately moving for partial summary judgment on the Association’s claims for (1) negligence because the Association’s claims are barred as a matter of law by the economic loss rule; and (2) violation of Section 553.84 because the alleged defects are merely technical in nature resulting in no present damage as required by Section 553.84. With respect to the alleged defects in the townhome roofs, the Court need not reach these other grounds for summary judgment if the Court finds, as it should, that the Association does not have standing with respect to the claims for those alleged roof defects. 4 134959627.1 The Association’s claims include damages for alleged defects in the design and construction of the roofs of the Royal Oak townhomes at the Villas at Emerald Lake. The Association does not own and is not responsible to maintain the townhome roofs under the Declaration of Covenants and Restrictions of the Villas at Emerald Lake (the “Declaration”) and the First Amendment to the Declaration of Covenants and Restrictions of the Villas at Emerald Lake (the “First Amendment”). Electronically certified copies of the Declaration and First Amendment from the Osceola County Clerk of the Circuit Court are attached as Exhibits A and B, respectively. 2 Only the homeowners are responsible for maintaining the roofs under the Declaration and First Amendment. The First Amendment specifically provides that the townhome owners are “responsible for repair and replacement of all roof damaged (sic) caused by anything other than normal wear and tear.” (emphasis added). The Association does not own the townhomes and is not responsible for 2 The Association admitted through its corporate representative, Randall Treadwell, that the Declaration and the First Amendment, respectively, were true and correct copies recorded by and maintained by the Association and that the Association had read them, was familiar with them, and acknowledged they were the Association’s “rules and procedures for the Community.” (Deposition of Randall Treadwell, Vol. I, April 11, 2023 (“Assoc. Corp. Rep. Dep.”) 11:12-25, 12:1- 12, Ex. 122; Id., Vol. II, 152:15-25; 153:1-24; 160:22-25, 161:1-21; Dep. Exs. 143, 144). The excerpts and exhibits from the Mr. Treadwell’s deposition cited in this Motion are attached as Composite Exhibit C (Exhibits 143 and 144 are not included in Composite Exhibit C because they are duplicative of Exhibits A and B, the Declaration and First Amendment). Mr. Treadwell’s full deposition transcript and all of the cited exhibits were filed separately with the Court. 5 134959627.1 maintaining their roofs. The Association admittedly told townhome owners this in 2018, well before this lawsuit was filed in November 2020, explaining that the owners were responsible for “interim repairs and maintenance,” and needed their own insurance coverage for their roofs, because the Association was only responsible for “long term replacement of the roofs.” (Assoc. Corp. Rep. Dep., 146:24-25; 147:1-2; 13-21; Dep. Ex. 142). The Association maintains reserves for this express purpose. As a matter of Florida law, the Association therefore lacks standing to seek damages for any claim for alleged defects to the townhome roofs. II. STATEMENT OF UNDISPUTED FACTS 1. The Association sues Royal Oak for damages for the alleged negligent and defective construction of the roofs, among other construction components, of the Royal Oak townhomes at the Villas at Emerald Lake. See Second Amended Complaint, ¶¶ 1, 49, 50, A-F.3 2. The Association alleges that it is responsible for maintenance and repair of the roofs of the Royal Oak townhomes. Id. at ¶ 44. 3. The Declaration, as amended by the First Amendment, however, requires each “Parcel Owner” to maintain, repair, and replace the roofs of his or her townhome. 3 The Association further sued Royal Oak’s subcontractors who performed or inspected this work at the Villas at Emerald Lake for these same alleged defects. Id., ¶¶ 52-58, 60, Counts X-XXII, XXVI- XXVII. 6 134959627.1 See First Amendment attached as Exhibit B, at ¶ 7.2 (emphasis added). The First Amendment provides, in relevant part: 7.2 Owner Maintenance. Parcel Owners shall maintain, repair and replace in a safe, clean, orderly and attractive condition those portions of the Parcel, Living Unit and any other improvements located thereon. Parcel Owners are responsible for all window repairs and screen repairs. Parcel Owners are also responsible for repair and replacement of all roof damaged (sic) caused by anything other than normal wear and tear. … See First Amendment attached as Exhibit B, at ¶ 7.2 (emphasis added). 4. Each townhome owner is a “Parcel Owner” under the Declaration. (Assoc. Corp. Rep. Dep., 164:1-11). See also, Declaration, 4 Ex. A, at ¶ 1.14 (defining “Parcel” as “one or more of the 88 platted parcels of land” in the Villas at Emerald Lake upon which a “Living Unit” is constructed); Ex. A, at ¶ 1.13 (defining “Living Unit” as “any or all of the residences which will be constructed on the Parcels….”) (emphasis added)). 5. Each townhome is owned in fee simple by its individual townhome owner. See Second Amended Complaint, at ¶ 43. The Association does not own any of the townhomes. Id. 4 The First Amendment provides that, except as specifically amended in the First Amendment, the Declaration “shall remain in full force and effect in its original form.” See First Amendment, Ex. B, at ¶ 5. The First Amendment made no changes to the Declaration definitions. 7 134959627.1 6. The Association, which is not a Parcel Owner, is not responsible for maintaining or repairing any townhome roof. See First Amendment, at ¶ 7.2. The Association’s only responsibility for the townhome roofs is to replace them for “normal wear and tear,” meaning at the end of their useful lives. Id.; (Assoc. Corp. Rep. Dep., 164:23-25; 165:1-4). 7. The Association advised the townhome owners at the 2018 Association Board meeting that they needed to obtain insurance for any damage to their own roofs for any reason in order to repair or replace them. (Id., at 151:16-22; 152:3-14; 170:13-20; Dep. Ex. 142). 8. The Association maintained reserves for “future major replacements,” and specifically identified “replacement” as the purpose of reserves for roofs in the Association’s reserve calculations. (Id., at 38:13-15; 256:17-25; 257:1-13; 258:24- 215; 259:1; Dep. Ex. 166). III. LEGAL STANDARD: STANDING AND SUMMARY JUDGMENT A. Standing. Standing is an issue of law. Daytona Beach Kennel Club, Inc. v. Dep’t of Bus., 33 So. 3d 799 (Fla. 5th DCA 2010). “To satisfy the requirement of standing, the plaintiff must show that a cause or controversy exists between the plaintiff and defendant, and that such cause or controversy continues from the commencement through the existence of the litigation.” Ferreiro v. Philadelphia Indem. Ins. Co., 8 134959627.1 928 So. 2d 374, 378 (Fla. 3d DCA 2006). The plaintiff must have standing to sue for all claims asserted at the inception of the case. Progressive Exp. Ins. Co. v. McGrath Community Chiropractic, 913 So. 2d 1281, 1285 (Fla. 2d DCA 2005); see also LaFrance v. U.S. Bank Nat. Ass’n, 141 So. 3d 754, 756 (Fla. 4th DCA 2014). When a plaintiff lacks standing, summary judgment is the appropriate remedy. See e.g., Nedeau v. Gallagher, 851 So. 2d 214, 216 (Fla. 1st DCA 2003) (“The appellants’ lack of standing was a fatal deficit and we therefore uphold the adverse summary judgment.”). B. Summary Judgment. As of May 1, 2021, Florida follows the new summary judgment standard. That summary judgment standard must be construed and applied in accordance with the federal summary judgment standard. In re Amendments to Fla. R. Civ. P. 1.510, No. SC20-1490, 2021 WL 1684095, at *1 (Fla. Apr. 29, 2021) [hereinafter “Amendments”]. 5 “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.” Chapman v. AI Transp., 229 F.3d 1012, 1023 5 The amended rule adopts the standard “articulated by the United States Supreme Court 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 (1986)”. Amendments, 2021 WL 1684095, at *1. 9 134959627.1 (11th Cir. 2000); Celotex, 477 U.S. at 322–23; Fla. R. Civ. Pro. 1.510(a) (2021). This standard mirrors the directed verdict standard. Amendments, 2021 WL 1684095, at *2 (“First, 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 this 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). This standard applies to an issue that is part of a claim. Fla. R. Civ. Pro. 1.510(a) (“A party may move for summary judgment, identifying each claim or defense – or the part of each claim or defense – on which summary judgment is sought.”) (emphasis added). See also, e.g., Amelco Inv. Corp. v. Bryant Elec. Co., 487 So. 2d 386, 387 (Fla. 1st DCA 1986) (approving trial court’s entry of partial summary judgment on a one-count complaint for damages based upon unpaid invoices, finding that the statute of limitations barred several of the invoices, but leaving two invoices pending); Dixon v. Allstate Ins. Co., 609 So. 2d 71, 72 (Fla. 1st DCA 1992) (dismissing appeal of order granting “partial Summary Judgement as to the Plaintiffs' dwelling and debris removal claim” and reserving jurisdiction on any and all other matters, as a non-appealable non-final order). 10 134959627.1 To avoid summary judgment, the nonmoving party 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)). 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. 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. The undisputed evidence demonstrates that the Association lacks standing as a matter of law to sue Royal Oak for defects in the townhome roofs because the Association neither owns nor is responsible to maintain and repair them. Royal Oak is therefore entitled to summary judgment in its favor on the Association’s claims for alleged defects in the townhome roofs. IV. THE ASSOCIATION LACKS STANDING TO SUE ROYAL OAK FOR ALLEGED ROOF DEFECTS BECAUSE THE ASSOCIATION DOES NOT OWN THE TOWNHOMES OR HAVE THE OBLIGATION TO REPAIR OR MAINTAIN THEM. The Association’s “power and duties” are set forth in Chapter 720 and “the governing documents.” §720.303(1), Fla. Stat. The relevant governing document is the Declaration, as amended, because it establishes the maintenance and repair 11 134959627.1 obligations of the Association and its members, the townhome owners.6 §§720.301(8)(a), 720.303(1), Fla. Stats. Neither the Declaration, as amended, nor Chapter 720 provide the Association standing to sue Royal Oak for alleged damages for alleged defects in the roofs of the townhomes owned by the Association’s members. A. The Declaration, as Amended, Makes the Townhome Owners Responsible for Maintenance and Repair of the Roofs of their Townhomes. The First Amendment provides that the townhome owners are responsible for maintaining and repairing their townhome roofs. See First Amendment, Ex. B, at ¶ 7.2. The First Amendment expressly states the Parcel Owners are “responsible for repair and replacement of all roof damaged (sic) caused by anything other than normal wear and tear.” Id. (emphasis added). The Declaration defines “Parcel” to mean “one or more of the 88 platted parcels of land … upon each of which a Living Unit is intended to be constructed. … .” Id. at ¶ 1.14. “Living Unit” is defined as “any or all of the residences which will be constructed on the Parcels, each intended for use and occupancy as a residence for a Single Family.” Id., at ¶ 1.13. The townhome roofs are “portions of the Parcel,” i.e. “Living Unit” and, thus, “residences” constructed on the “88 platted parcels of land” 6 The governing documents also include the Association’s articles of incorporation, bylaws, and rules and regulations. §720.301(8)(b), (c), Fla. Stat. None of these additional governing documents have any bearing on this motion. 12 134959627.1 in the Villas at Emerald Lake “for use and occupancy as a residence for a Single Family.” Id. “Single Family Residence” means “a Living Unit which is restricted to occupancy only by the owner … and their family, guests, and tenants as further provided herein.” Id., at ¶ 1.21. The townhome owners, therefore, must maintain and repair their townhome roofs. See Fern v. Eagles’ Reserve Homeowners’ Ass’n, Inc., 162 So. 3d 257, 261 (Fla. 2d DCA 2015) (holding that, unlike a condominium, the outer surfaces of a townhome are owned in fee simple by the townhome owner). They are expressly responsible for maintenance and repairs for alleged defects in their roofs. The First Amendment makes clear that maintenance and repair of the townhomes roofs is the financial responsibility of each townhome owner and not an Association common expense shared by all Association members. See First Amendment, Ex. B, at ¶ 7.1. The Association and its member townhome owners are governed by and must comply with the Declaration, as amended. §720.305(1), Fla. Stat. (“Each member … and each association, are governed by, and must comply with, this chapter, the governing documents of the community, and the rules of the association. … .”). Cf, The Fountains of Palm Beach Condo., Inc. No. 5 v. Farkas, 355 So. 2d 163, 164 (Fla. 4th DCA 1978) (noting that the same provision under Section 718.303(1) mandates that unit owners shall be governed by the Declaration). To this end, the Declaration must be strictly construed. Id.; see also Shores of Panama Club, LLC. v. Shores of Panama Resort Community Ass’n, Inc., 204 So. 3d 541, 543 13 134959627.1 (Fla. 1st DCA 2016); Curci Village Condo. Ass’n., Inc. v. Maria, 14 So. 3d 1175, 1177 (Fla. 4th DCA 2009). The Declaration, as amended, when strictly construed by its express terms, demonstrates that the Association lacks standing to sue Royal Oak for alleged defects in the townhome roofs. See Strathmore Gate-East at Lake St. George Homeowners’ Ass’n, Inc. v. Levitt Homes, Inc., 537 So. 2d 657, 658 (Fla. 2d DCA 1989) (finding that a homeowners’ association’s standing to assert construction defect claims was dependent upon its ownership and maintenance of common areas under its declaration). As a result, Royal Oak is entitled to summary judgment on the Association’s claims for alleged damages for alleged defects to the roofs of the Royal Oak townhomes. B. The Association Cannot Argue that its Claims are Premised upon Alleged Defects to Townhome Improvements for which the Association is Not Responsible as a Matter of “Common Interest” under Section 720.303, Florida Statutes, and Rule 1.221, Florida Rules of Civil Procedure. Section 720.303, Florida Statutes, and Rule 1.221, Florida Rules of Civil Procedure, provide the Association with a limited right to sue for matters of common interest for which the Association is responsible. Section 720.303(1), Florida Statutes, provides, in pertinent part, that homeowner associations may sue on behalf of 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 14 134959627.1 improvements for which the association is responsible; … .” § 720.303, Fla. Stat. (emphasis added). The Association lacks standing to bring the claims premised on alleged defects in the “roofs” of the townhome buildings because the Association must be responsible for them to have standing to bring the claims. Rule 1.221 makes even clearer that the Association cannot sue on behalf of the common interests of its owner members if the Association is not responsible for the building improvements at issue. The Rule provides, in pertinent part, that a homeowners’ association may institute an action on behalf of its members “concerning matters of common interest” for the roof, structural components, or other building improvements “specifically limited to those improvements for which the association is responsible.” Fla. R. Civ. Pro. 1.221 (emphasis added). The Association cannot sue on behalf of its members for damages for defects in improvements that the Association is not responsible for in the Declaration, like townhome roofs. Chapter 720, Florida Statutes, and Rule 1.221, Florida Rules of Civil Procedure, do not define the term “responsible.” In such cases, where the legislature does not define words in a statute, the words should be given their plain and ordinary meaning, and dictionary definitions can be used to ascertain that meaning. Shepard v. State, 259 So. 3d 701, 705 (Fla. 2018) (where word was not defined by statute holding it was “appropriate to refer to dictionary definitions when construing statutes 15 134959627.1 to ascertain the plain and ordinary meaning of words used there.”) (internal citations omitted); The School Board of Palm Beach County v. Survivors’ Charter Schools, Inc., 3 So. 3d 1220, 1233 (Fla. 2009) (same). The plain and ordinary meaning of the word “responsible” based on the dictionary definition is an improvement for which the Association is “liable to be called on to answer.” See Merriam-Webster at https://www.merriam-webster.com/dictionary/responsible (2023). To determine what building improvements the Association is “liable to be called on to answer” for to its members one must turn to the Declaration. The Association does not have standing to sue Royal Oak for claims based on alleged damages for alleged defects to roofs of the Royal Oak townhomes because the Association is not “liable to be called on to answer” for maintenance and repair of them. As demonstrated above, under the Declaration and First Amendment, the Association is not responsible for maintenance and repair of any of the townhome roofs. See First Amendment, Ex. B, at ¶¶ 7.2, 7.1. The Association cannot otherwise base its claims on the general “common interests” under Section 720.303 and Rule 1.221. The general statutory authorization to sue on behalf of “common interests” cannot extend to interests expressly excluded from that authorization by specific statutory language in the same statute, i.e. improvements for which the Association is not responsible. To construe “common interests” to mean “improvements” for which the Association is not responsible 16 134959627.1 requires this Court to extend or modify the express terms of Section 720.303, Florida Statutes, which the Court cannot do. See Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (stating that “a statute must be given its plain and obvious meaning” and courts are “without power to construe an unambiguous statute in a way which would extend, modify or limit its express terms or its reasonable and obvious implications”). It is an “elementary principle” of statutory construction “that significance and effect must be given to every word, phrase, sentence and part of the statute” and “words in a statute should not be construed as mere surplusage.” The School Board of Palm Beach County, 3 So. 3d at 1233. The construction of Section 720.303 that gives effect to every word and phrase is that the Association may sue on matters of “common interest” involving “improvements” only for those “improvements” for which the Association is responsible for, or liable to be called to answer for, maintenance and repair under the Declaration. The same result is obtained under the well-recognized principle of statutory construction that a specific provision controls over a general provision: “It is well established that, where there is in the same statute a specific provision, and also a general one that in its most comprehensive sense would include matters embraced in the former, the particular provision will nevertheless prevail,” and the “general provision must be taken to affect only such cases as are not within the terms of the particular provision.” Fletcher v. Fletcher, 573 So. 2d 941, 942 (Fla. 2d DCA 1991); 17 134959627.1 see Psychiatric Institute of Delray, Inc. v. Keel, 717 So. 2d 1042, 1043 (Fla. 4th DCA 1998). Section 720.303 generally authorizes the Association to sue on behalf of “common interests” and specifically authorizes the Association to sue on behalf of “common interests” for “roof or structural components” and “other improvements for which the Association is responsible.” § 720.303, Fla. Stat. The specific authorization controls here because the Association’s claims in this action concern townhome building “roofs.” Psychiatric Institute of Delray, Inc., 717 So. 2d at 1043; Fletcher, 573 So. 2d at 942. This construction of Section 720.303 makes sense. The Association is not responsible under the Declaration for maintenance and repair of the roofs of the townhomes, but it, nevertheless, seeks damages for alleged defects to these building improvements. Any damages awarded for such alleged defects, then, goes to the Association and not to the townhome owners who are actually responsible for the maintenance and repair of these roofs under the Declaration, as amended. Such a result is not sanctioned under the express terms of Section 720.303 that preclude the Association from suing for alleged damages for defects to building improvements the Association is not responsible to maintain or repair under the Declaration and First Amendment. 18 134959627.1 V. CONCLUSION. For all the reasons stated above, Royal Oak is entitled to partial summary judgment in its favor and against the Association on the Association’s alleged roof defect claims because the Association lacks the necessary standing to sue Royal Oak for the alleged defects to the Royal Oak townhome roofs under the Declaration and Section 720.303 and Rule 1.221. WHEREFORE, Defendant/Crossclaim Plaintiff, Royal Oak Homes, LLC, respectfully requests the Court enter an order granting Royal Oak Homes, LLC’s Motion for Partial Summary Judgment against the Association on its negligence and vicarious liability and building code violation claims for lack of standing to sue for alleged damages for alleged defects to Royal Oak townhome roofs, and granting such other and further relief as this Court deems just and proper. 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 19 134959627.1 Telephone: (813) 223-7000 Facsimile: (813) 229-4133 mwalls@carltonfields.com lprats@carltonfields.com rleavengood@carltonfields.com anordman@carltonfields.com slambe@carltonfields.com ffoley@carltonfields.com fgonzalez@carltonfields.com Attorneys for Defendant, Royal Oak Homes, LLC 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 E-filing Portal, which will electronically serve this document to all registered counsel of record. /s/ James Michael Walls Attorney 20 134959627.1 Exhibit “A” Electronically Certified Official Record (Cover Page) This cover page is for informational purposes only and is not a requirement when presenting the Electronic Certified Document. Directly below the cover page, at the bottom of page 1, you will find the digital signature bearing the identity and authority of the Clerk. On the left side of each page is a unique code identifying the electronic certification for this document. Agency Name: Osceola County Clerk of the Circuit Court Clerk of the Circuit Court: The Honorable Kelvin Soto, Esq. Date Issued: 5/17/2022 1:47:16 PM Unique Reference Number: BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Instrument Number: 2007207314 Requesting Party Code: 100 HOW TO VERIFY THIS DOCUMENT: This electronically certified Official Record contains a unique electronic reference number for identification printed on each page. This document is delivered in PDF format and contains a digital signature identifying the certifier and a tamper-evident seal indicating whether this document has been tampered with. The second page of this document contains a digital signature indicating the certifier as the Osceola County Clerk of the Circuit Court. Open this document using Adobe Reader software to verify the digital signature of the author. Visit https://Verify.Clerkecertify.com/VerifyImage to learn more about validating this certified copy. Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 1 of 35 Digitally signed by The Honorable Kelvin Soto, Esq. Date: 2022.05.17 13:47:16 -04:00 Reason: Electronic Certified Copy Location: 2 Courthouse Square, Kissimmee, FL 34741 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 2 of 35 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 3 of 35 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 4 of 35 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 5 of 35 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 6 of 35 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 7 of 35 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 8 of 35 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 9 of 35 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 10 of 35 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 11 of 35 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 12 of 35 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 13 of 35 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 14 of 35 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 15 of 35 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 16 of 35 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 17 of 35 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 18 of 35 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 19 of 35 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 20 of 35 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 21 of 35 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 22 of 35 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 23 of 35 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 24 of 35 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 25 of 35 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 26 of 35 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 27 of 35 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 28 of 35 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 29 of 35 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 30 of 35 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 31 of 35 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 32 of 35 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 33 of 35 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 34 of 35 Unique Code : BAA-BAA-BCAJH-CAAHCAHDBE-BBHAGG-J Page 35 of 35 Exhibit “C” 11 1 understand, will you please let me know so I can 2 rephrase it? 3 A. Yes, sir. 4 Q. Otherwise, I'm going to assume you understood 5 the question; is that fair? 6 A. Yes, sir. 7 Q. And if you don't know the answer to a 8 question, please just tell me you don't know and we'll 9 move on. I understand you may need breaks. If you need 10 a break at any time, let me know. We'll take a 11 five-minute break or ten-minute break as needed. 12 MR. WALLS: And with that, I'll go to our 13 first exhibit, which I believe, Madame Court 14 Reporter, we're on Exhibit 122. 15 THE REPORTER: That's what I was told. 16 (Exhibit 122 marked for identification.) 17 Q (By Mr. Walls) So this is Exhibit 122, the 18 Notice of Taking Deposition of Plaintiff's Corporate 19 Representative. 20 Mr. Treadwell, have you seen this document? 21 A. I have. 22 Q. Did you review it? 23 A. Yes, sir. 24 Q. Did you review Exhibit A to this document? 25 A. Please go to Exhibit A. Legal Realtime Reporting 12 1 Q. Yes. 2 A. Yes, sir. 3 Q. And are you the corporate representative for 4 the Villas at Emerald Lake Homeowners Association, 5 Incorporated, for all the topics listed in Exhibit A to 6 Exhibit 122? 7 A. Yes, sir. 8 Q. And you understand that the answers you 9 provide to the questions today are on behalf of the 10 Villas at Emerald Lake Homeowners Association, Inc., and 11 bind the association; is that right? 12 A. Yes, sir. 13 Q. Now, when I refer to the association during 14 the course of this deposition, will you understand that 15 I mean the Villas at Emerald Lake Homeowners 16 Association, Inc.? 17 A. I will. 18 Q. And I may refer to "project" or the 19 "townhomes." Will you understand that I mean the Villas 20 at Emerald Lake townhomes? 21 A. Yes. Yes, sir. 22 Q. And before we get to some more questions, I 23 have some back- -- or more exhibits, I have some 24 background questions for you. 25 What did you do to prepare for this Legal Realtime Reporting 38 1 this association, what information did you rely on to 2 prepare that budget? 3 A. Which one? 4 Q. The one for the association at any time. What 5 were you looking at to determine their budget? 6 MS. JOYCE: Form. 7 THE WITNESS: Still answer? 8 MS. JOYCE: Yeah. You can answer. 9 A. Look at historical trends, what are the 10 averages for utilities, trash, what are the known costs 11 for future major replacements, and then any planned 12 repairs, tree trimmings, any future work. 13 Q (By Mr. Walls) You said future major 14 replacements, what do you mean by that? 15 A. I referred to that as the reserve items. 16 Q. How were the reserve items determined for the 17 association? 18 A. In this case, I believe it was the numbers 19 turned over by the developer to the association. 20 Q. During the course of your work for the 21 association as a community association manager, did you 22 ever undertake any action to update the reserves for 23 future major replacements? 24 A. No, sir. 25 Q. Are you familiar with companies that do Legal Realtime Reporting 146 1 Did I read that correctly? 2 A Yes. 3 Q What does that mean? 4 A It means -- 5 MS. JOYCE: Form. 6 A It means we posted a notice at least 48 hours 7 in advance of the meeting on the property. 8 Q (By Mr. Walls) November 27, 2018, isn't this 9 the same date you signed the agreement with Blue Water 10 Community Management that we marked previously as 11 Exhibit 128? 12 A I would have to see that exhibit to recall the 13 dates. 14 Q Let me show you what was previously marked as 15 Exhibit 128. It doesn't look like the date is in the 16 first paragraph, but let me go down. Do you see the 17 signature page? 18 A I do. 19 Q Isn't that November 27, 2018? 20 A It is. 21 Q And that is your signature, right, as the 22 witness; right? 23 A Correct. 24 Q That's the same date as the Management 25 Agreement, right -- I'm sorry, the same date as the Legal Realtime Reporting 147 1 board meeting that I just showed you? 2 A Yes. 3 Q Let me go back to the board meeting minutes. 4 And if we go down to item six, do you see that 5 number, discussion on agenda items? 6 A I see it. 7 Q And by member discussion, that means that 8 members were present at this board meeting? 9 A Yes. 10 Q And is item six a true summary of the 11 discussion that occurred on November 27, 2018? 12 A Yes. 13 Q I want to direct your attention to the third 14 sentence there in item six of Exhibit 142 where it says, 15 quote, Mr. Treadwell explained to the members that they 16 needed to speak with their individual insurance agents 17 and make sure they had roof coverage. He explained that 18 the HOA only had responsibility for the long-term 19 replacement of the roofs and not interim repairs and 20 maintenance. Did I read that correctly? 21 A Yes. 22 Q And by this, you mean that the association was 23 not responsible for interim repairs or maintenance of 24 the roofs; right? 25 MS. JOYCE: Form. Legal Realtime Reporting 151 1 engaged. I was just assigned to the association. 2 Q (By Mr. Walls) Well, I understand that, 3 Mr. Treadwell, but you also told me that you believe 4 that generally accepted industry standards of the 5 community association management required honest advice 6 and direction to the board? 7 A That is correct. 8 Q Did you believe in 2018 when you made these 9 statements reflected in item six on Exhibit 142 that you 10 were providing the Board and its members honest and 11 direct advice? 12 A That's a two-part answer. One, you are 13 referring to a different contract than the association 14 management company. But I always believe that I am 15 giving the best and honest advice to my clients. 16 Q And were you giving the best and honest advice 17 to your clients when you made this statement to the 18 members and the board identified in item six in Exhibit 19 142 in November of 2018? 20 MS. JOYCE: Form. 21 A Yes. But I wanted to clarify that I was not 22 the corporate representative in 2018. 23 Q (By Mr. Walls) Well, I understand that. 24 A I need to clarify, because you had said when 25 we started this that I was the corporate rep, and you Legal Realtime Reporting 152 1 referenced this. And that time, I was not the corporate 2 rep. 3 Q I understand you were not the corporate rep in 4 November '18, but you are the corporate rep today; 5 right? 6 A Correct. 7 Q And as the corporate rep, you are relying on 8 the knowledge, not only of the association and the 9 documents, but your own knowledge; right? 10 A That is correct. 11 Q The knowledge includes your knowledge of why 12 you made these statements to the board in November of 13 2018 identified in Exhibit 142; correct? 14 A Yes. 15 MR. WALLS: Let me show you what we will mark 16 as Exhibit 143. 17 (Exhibit No. 143 because marked for 18 identification.) 19 Q (By Mr. Walls) You will see on the first page 20 of this 35-page document, it says in the right-hand 21 column EmeraldHOA 007019; do you see that? 22 A I see it. 23 Q That was provided by the association to us. 24 Is this a true and correct copy of the Declaration of 25 Covenants and Restrictions of the Villas at Emerald Legal Realtime Reporting 164 1 Q The next sentence in 7.1 in this first 2 amendment marked as Exhibit 144 says, the association is 3 responsible for the protection, maintenance, repair, and 4 replacement of the common areas, including without 5 limitation, all neighborhood entranceway, roadways, and 6 exterior landscaping; correct? 7 A That's what it says. 8 Q And then it goes on to say that the 9 association is responsible for the following on all 10 living units, meaning townhomes; right? 11 A Correct. 12 MS. JOYCE: Form. 13 Q (By Mr. Walls) In there is says, lawn 14 maintenance, trimming of all trees and shrubs, exterior 15 irrigation, all exterior painting of buildings, termite 16 protection, and normal wear and tear on the roof; right? 17 A That is what it says. 18 Q And that's the limit of the association's 19 responsibility for maintenance of the individual 20 townhomes; correct? 21 MS. JOYCE: Form. 22 A According to this, yes. 23 Q (By Mr. Walls) And would you agree that normal 24 wear and tear of the roofs means that the association 25 was only responsible for replacement of the roofs at the Legal Realtime Reporting 165 1 end of their useful lives? 2 MS. JOYCE: Form. 3 A Yes. But the useful life had to be 4 determined. 5 Q (By Mr. Walls) And how is that useful life of 6 the roofs determined? 7 A There would be a few different ways that could 8 be done. 9 Q How did the association here do it? 10 A The current life cycle would be what was 11 turned over by the developer to say, hey, this is 12 suppose to be a 500-year roof, or whatever the number 13 is. I would caveat that to say that a useful life cycle 14 by a manufacturer installer should be, would be 15 mitigated or destroyed if it wasn't properly installed. 16 Q Where did you get the useful life here, was it 17 based on what you have for the association reserves; is 18 that correct? 19 A Yeah. Whatever the life cycle was when the 20 information was turned over, to my knowledge, that has 21 not been updated. To update a contribution life 22 cycle -- well, according to the statutes, the board 23 could be defined, but I would either encourage the board 24 to do a reserve study, which is a third-party 25 engineering. They come in and determine life cycle Legal Realtime Reporting 170 1 repairs; correct? 2 MS. JOYCE: Form. 3 A That's what it says. 4 Q (By Mr. Walls) That means the homeowners are 5 responsible for all window repairs; correct? 6 MS. JOYCE: Form. 7 A Again, that's what it says. 8 Q (By Mr. Walls) And then it says, quote, parcel 9 owners are also responsible for repair and replacement 10 of all roof damage caused by anything other than normal 11 wear and tear; correct? 12 A That's what it states. 13 Q Is that another reason for the basis for your 14 opinions that you provided the board members and the 15 members who were present at the November 2018 meeting, 16 that the association was responsible only for 17 replacement of the roofs at the end of their useful 18 life? 19 MS. JOYCE: Form. 20 A That would probably have been it, yes. 21 Q (By Mr. Walls) Mr. Treadwell, I will show you 22 what is marked Exhibit 145. 23 (Exhibit No. 145 was marked for 24 identification.) 25 Q (By Mr. Walls) This is the Second Amendment to Legal Realtime Reporting