Preview
Filing # 174098684 E-Filed 05/26/2023 03:33:26 PM
IN THE CIRCUIT COURT OF THE
9™ JUDICIAL CIRCUIT IN AND
FOR OSCEOLA COUNTY,
FLORIDA
CASE NO.: 2020-CA-002942-ON
VILLAS AT EMERALD LAKE
HOMEOWNERS ASSOCIATION,
INC., a Florida not for profit
corporation,
Plaintiff,
v
ROYAL OAK HOMES, LLC, a
Florida limited liability company;
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; 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;
Defendant.
/
ROYAL OAK HOMES, LLC, a Florida
limited liability company;
Crossclaim Plaintiff,
v
ADVANCED WRAPPING AND
CONCRETE SOLUTION 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;
Crossclaim Defendants
DEFENDANT/CROSSCLAIM DEFENDANT, BROWN + COMPANY
ARCHITECTURE, INC.’s, REPLY TO ROYAL OAK HOMES, LCC’S
RESPONSE TO THE MOTION TO DISMISS
COMES NOW, Defendant/ Crossclaim Defendant, BROWN + COMPANY
ARCHITECTURE, INC., (“Brown”), by and through the undersigned counsel and
files this Reply to ROYAL OAK HOMES, LCC’S (“ROH”) Response in Opposition
to Brown’s Motion to Dismiss Counts 28, 29 and 30 of ROH’s second amended
Crossclaim Complaint and Motion to Strike Claims for Prejudgment Interest, and in
support thereof states as follows:
I Brown Complied with the Spirit of the Good Faith Conferral
Requirement, But Counsel for ROH Refused to Participate
Brown concedes that it did not seek to meet and confer with counsel for ROH
until after the Motion to Dismiss was filed. Notwithstanding same, two days after
the Motion to Dismiss was filed, on April 21, 2023, counsel for Brown contacted
counsel for ROH to remedy the oversight and discuss the underlying arguments of
the Motion to Dismiss and resolve any matters that could be resolved without the
need for judicial intervention. Despite these attempts, counsel for ROH refused to
engage in any such discussions with counsel for Brown because the Motion was
already filed and counsel for ROH responded that “we fail to see how the purpose
of the conferral—which our understanding is for the parties to attempt to resolve
issues without the need for a motion—can be met here....” See email exchanged,
attached hereto as Exhibit “A.” It is Brown’s position that it did attempt to resolve
the issues raised in the Motion without the need for Court intervention, which is the
spirit of the rule for which the meet and confer mandate was created, but counsel for
ROH refused to engage in such discussions because of a technicality. As such, the
Motion to Dismiss should not be denied outright merely because ROH refused to
make any attempts to resolve the issues raised therein.
I. ROH’s Cross-Complaint Does Not Allege Sufficient Facts to
Establish that it has the Ability to Enforce the Contract
ROH’s entire argument that it is entitled to bring a breach of contract claim,
despite not being a named party to the contract, rests on its one allegation within the
Crossclaim that “Royal Oak is a wholly-owned subsidiary and agent of Avatar
Properties, Inc. and has standing to enforce the contract.” However, ROH’s
allegation that it is an agent of Avatar Properties, Inc. is a barebones, conclusory
allegation, and is insufficient to comply with Florida’s pleading requirements. A
party must plead enough facts to state a plausible basis for its claim; bare-bone
allegations are insufficient. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct.
1955, 167 L. Ed. 2d 929, 68 Fed. R. Serv. 3d 661 (2007). ROH fails to plead the
ultimate facts showing that it is an agent, and further, does not allege how, as a
wholly-owned subsidiary of Avatar, it is an agent with the ability to enforce the
contract that Avatar entered into. ROH’s argument is essentially that every wholly
owned subsidiary is a principal’s agent, which is not only nonsensical, but is not
supported by any Florida case law. Because ROH has not pled that it is the ‘real
party in interest’ with sufficient ultimate facts, ROH has not established that it has
standing to enforce any provision contained within the attached contract.
Il. ROH’s Crossclaim Referencing the Contract Between Brown and
Avatar Properties Does Not Establish the Elements of Duty and
Breach
Within its Motion to Dismiss, Brown alleges that Count 29 for professional
negligence must be dismissed because ROH fails to include any allegations
establishing that Brown had a duty to provide certain services that it allegedly did
not provide, including a duty to provide details of the windows, waterproofing
elements around the windows, and the exteriors of the building. ROH’s argument in
response to that is essentially that it attached an eight-page contract to the Cross-
complaint, and that somewhere within this eight-page contract, Brown’s alleged
duties are included. This argument ignores the pleading requirements under Florida
law. The onus does not lie on the defendant (or here, the crossclaim defendant) to
determine what the Plaintiff (or here, the crossclaim plaintiff) is alleging; rather, the
pleading requirements require that the crossclaim plaintiff to set forth the facts with
sufficient particularity. Here, ROH’s cross-complaint fails to do. As such, ROH has
not alleged a cause of action for professional negligence with sufficient particularity,
and dismissal is proper.
Iv. Florida Law has Consistently Held that Design Professionals
Cannot be Found Liable for a Cause of Action of Violation of the
Florida Building Code
ROH also argues with regard to the cause of action brought against Brown for
violation of Florida’s building code that “[a]rchitects are subject to, and can commit
a violation of, the Florida Building Code, and hence, can be held liable under Section
553.84. This argument is in direct contradiction with numerous Orders throughout
the state of Florida, finding that design professionals, such as Brown, cannot be held
liable for the cause of action of Violation of Florida’s Building Code. See Lanham,
Larry vs T Scholten Builder LLC, et al., 11-2019-CA-002752-0001-XX (L-300-
1020851), which is attached hereto as Exhibit “B,” as well as other Circuit Courts
throughout Florida issuing similar Orders, Summer Key Condominium Association,
Inc. v. DR. Horton et. al., 16-2020-CA-000652; Stonehaven at Aberdeen
Homeowners Association, Inc. v. D.R. Horton, Inc. et. al., CA20-662; Miralago
Estates I Neighborhood Assn, Inc. v. Lennar Homes, LLC et. al., CACE20018176,
which are attached hereto as Exhibit “C.”
V. ROH has Not Alleged the Prerequisites to Establish that it is Entitled to
Prejudgment Interest
Within its Response in Opposition to the Motion to Strike ROH’s claim for
prejudgment interest, ROH does not argue that its claim is liquidated; rather, ROH
argues that under Florida’s Loss Theory, “when a verdict liquidates damages on a
plaintiff's out of pocket, pecuniary losses, plaintiff is entitled, as a matter of law, to
prejudgment interest at the statutory rate from the date of that loss.” However,
prejudgment interest on unliquidated damages is awardable only when two
prerequisites are met: (1) there is an out-of-pocket pecuniary loss, and (2) there is a
fixed date of loss. Albanese Popkin Hughes Cove, Inc. v. Scharlin, 141 So. 3d 743
(Fla. 3d DCA 2014). ROH’s Cross-Complaint fails to allege either of these
prerequisites, and its response in opposition does not argue that it has; therefore,
ROH has not established a claim for prejudgment interest, and such a claim must be
stricken from the Cross-Complaint.
WHEREFORE, Defendant/Crossclaim Defendant, Brown + COMPANY
ARCHITECTURE, INC., respectfully requests that this Court enter an Order
dismissing Counts 28, 29 and 30 from Royal Oak Homes, LLC Second Amended
Crossclaim Complaint, and also striking the claims for prejudgment interest, and for
any further relief this Court deems just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
electronically served via the Florida E-Filing Portal to counsel of record for the
parties on the attached Service List, this 26th day of May, 2023.
MILBER MAKRIS PLOUSADIS &
SEIDEN, LLP Attorneys for Defendant,
Brown + Company Architecture, Inc.
1900 NW Corporate Blvd., East Tower, Suite
440 Boca Raton, Florida 33431
bcalderon@milbermakris.com
azgross@milbermakris.com
breisch@milbermakris.com
Telephone: 561-994-7310
Facsimile: 561-994-7313
By: _S:/ /Bruce Calderow
Bruce R. Calderon
Florida Bar No. 50448
Barri A. Reisch
Florida Bar No. 107052
Alicia Z. Gross
Florida Bar No. 0103210
SERVICE LIST
Phillip E. Joseph, Esq.
Evan J. Small, Esq.
Jeffrey A. Widelitz Esq.
Christopher S. Tribbey, Esq.
Kacey L. Joyce, Esq.
BALL JANIK, LLP
201 East Pine Street — Suite 600bet
Orlando, FL 32801
pjoseph@balljanik.com
small@balljanik.com
jwidelitz@balljanik.com
ctribbey@balljanik.com
dtodd@balljanik.com
bburton@balljanik.com
rhansch@balljanik.com
kjoyce@balljanik.com
Counsel for Plaintiff, Villas at Emerald
Lake Homeowners Association, Inc.
Thamir A. R. Kaddouri, Jr., Esq.
Beth A. Tobey, Esq.
LAW OFFICE OF THAMIR A.R.
KADDOURL JR., P.A.
3220 West Cypress Street
Tampa, FL 33607
thamir.kaddouri@tampalaw.org
beth.tobey@tampalaw.org
Jessica.Ayala@Tampalaw.org
Counsel for Defendant, Imperial Building Corporation
Peter J. Kapsales, Esq.
Margaret M. Efta, Esq.
MILNE LAW GROUP, P.A.
301 East Pine Street — Suite 525
Orlando, FL 32801
pkapsales@milnelawgroup.com
mefta@milnelawgroup.com
eservice@milnelawgroup.com
Counsel for Defendant, Weathermaster Building Products, Inc.
Luis Prats, Esq.
Robin H. Leavengood, Esq.
Lannie D. Hough, Jr., Esq.
James Michael Wells, Esq.
CARLTON FIELDS, P.A.
4221 W. Boy Scout Boulevard
Tampa, FL 33607-5780
rleavengood@carltonfields.com
lhough@carltonfields.com
nbonilla@carltonfields.com
ejohnson@carltonfields.com
mramos@carltonfields.com
mwalls@carltonfields.com
krick@carltonfields.com
Iprats@carltonfields.com
Counsel for Defendant, Royal Oak Homes, LLC
Ashley Mattingly, Esq.
Denise M. Anderson, Esq.
BUTLER WEIHMULLER KATZ CRAIG
400 North Ashley Drive — Suite 2300
Tampa, FL 33602
mattingly@butler.legal
dandersom@butler.legal
kreick@butler.legal
jorge@butler.legal
Counsel for Defendant, Hugh MacDonald Construction, Inc. (HMC)
Denise M. Anderson, Esq.
David Mercer, Esq.
BUTLER WEIHMULLER KATZ CRAIG LLP
400 North Ashley Drive — Suite 2300
Tampa, FL 33602
danderson@butler.legal
dmercer@butler.legal
jjacobs@butler.legal
mmilligan@pbutler.legal
Counsel for Defendant, Don King’s Concrete, Inc.
Jayne Ann Pittman, Esq.
Natalie Fischer, Esq.
CONROY SIMBERG
Two South Orange Avenue — Suite 300
Orlando, FL 32801
eserviceorl@conroysimberg.com
jpittman@conroysimberg.com
nfischer@conroysimberg.com
mmaitland@conroysimberg.com
Counsel for Defendant, Advanced Wrapping and Concrete Solutions Of Central
Florida, Inc.
William M. Woods, Esq.
Joseph M. Cline, Esq.
LAW OFFICE OF WILLIAM WOODS
100 S. Missouri Avenue — Suite 201
Clearwater, FL 33756
wwoods@willwoodslaw.com
josephC@willwoodslaw.com
MaritaL@willwoodslaw.com
pleadings@willwoodslaw.com
Counsel for All Glass Installation Corp.
Monal Zipper, Esq.
Jennifer Shippole, Esq.
LAW OFFICE OF JENNIFER L. SHIPPOLE
14050 NW 14th Street, Suite 180
Sunrise, Florida 33323
jshippole@fednat.com
mzipper@fednat.com
pleadings@fednat.com
Counsel for Atlantic Concrete Systems, Inc.
Richard L. Russo, Esq.
LAW OFFICE OF RICHARD L. RUSSO
505 Maitland Ave., Suite 1000
Altamonte Springs, FL 32701
rrusso@wfmblaw.com
and
Cole J. Copertino, Esq.
WRIGHT, FULFORD, MOOREHEAD & BROWN, P.A.
505 Maitland Avenue, Suite 1000
Alamonte Springs, Florida 32701
ccopertino@wfmblaw.com
cbraungart@wfmblaw.com
lwilliams@wfmblaw.com
Counsel for Well Hung Windows & Doors, LLC
Chelsey “Chet” G. Moody, Jr., Esq.
Mai M. Le, Esq.
MOODY & GRAF, P.A.
1101 N. Lake Destiny Rd., Suite 200
Maitland, FL 32751
cmoody@moodygraf.com
mle@moodygraf.com
kbraund@moodygraf.com
iperera@moodygraf.com
Counsel for Wolf’s Irrigation & Landscaping, Inc.
Joseph L. Zollner, Esq.
LAW OFFICE OF J. CHRISTOPHER NORRIS
P.O. Box 7217
London, KY 40742
joseph.zollner@libertymutual.com
FloridaCDLegalMail@LibertyMutual.com
Counsel for Lois Concrete Corp.
Andrew E. Hollway, Esq.
Tim Ford, Esq.
HILL WARD HENDERSON
101 E. Kennedy Blvd., Suite 3700
Tampa, FL 33602
andrew.holway@hwhlaw.com
tim. ford@hwhlaw.com
rocco.cafaro@hwhlaw.com
ron.espinal@hwhlaw.com
kathy.wernsing@hwlaw.com
tracy.coale@hwlaw.com
derrick.calandra@hwlaw.com
jill. kuty@hwhlaw.com
Counsel for Weintraub Inspections & Forensics, Inc. n/k/a Weintraub
Engineering and Inspections, Inc.
Phillip S. Howell, Esq.
Brendan C. Collins, Esq.
GALLOWAY JOHNSON TOMPKINS BURR & SMITH
400 N. Ashley Drive, Suite 1000
Tampa, FL 33602
bcollins@gallowaylawfirm.com
tampaservice@gallowaylawfirm.com
phowell@gallowaylawfirm.com
Counsel for Casey Hawkins Glass, Inc.
Andrew T. Marshall, Esq.
HAMILTON PRICE
2400 Manatee Ave. West,
Bradenton, FL 34205
andrew@hamiltonpricelaw.com
nancy@hamiltonpricelaw.com
kelsey@hamiltonpricelaw.com
and
William M. Woods, Esq.
Joseph M. Cline, Esq.
LAW OFFICE OF WILLIAM WOODS
100 S. Missouri Avenue, Suite 201
Clearwater, Florida 33756
Wwoods@willwoodslaw.com
Pleadings@willwoodslaw.com
JosephC@willwoodslaw.com
MaritaL@willwoodslaw.com
Counsel for T&M Construction of Sanford, Inc
Scott Ross, Esq.
Mary O’Brien, Esq.
GROELLE & SALMON, P.A
1715 N. Westshore Blvd., #320
Tampa, FL 33607
gstcourtdocs@gspalaw.com
sross@gspalaw.com
cebanks@gspalaw.com
Counsel for Helberg Enterprises, LLC
Todd M. Ladouceur, Esq.
Jerrilynn Hadley, Esq.
GALLOWAY, JOHNSON, TOMPKINS, BURR AND SMITH, PLC
118 E. Garden Street
Pensacola, FL 32502
TMLConstruction@gallowaylawfirm.com
Counsel for Hobbit Windows, LLC
Jennifer Miller Brooks, Esq.
Kira Tsiring, Esq.
HAMILTON, MILLER & BIRTHISEL, LLP
150 Southeast Second Avenue, Suite 1200
Miami, Florida 33131
ktsiring@hamiltonmillerlaw.com
jmiller@hamiltonmillerlaw.com
jcasaccio@hamiltonmillerlaw.com
Counsel for TGK Stucco, Inc.
Wayne M. Alder, Esq.
FISHER BROYLES, LLP
7668 NW 125" Way
Pompano Beach, FL 33076
Wayne.alder@fisherbroyles.com
wmalder@bellsouth.net
Counsel for E.R.O. Construction, Inc.
EXHIBIT A
Katrina McDowell
From: Bruce Calderon
Sent: Monday, April 24, 2023 2:06 PM
To: Walls, J. Michael; Barri Reisch; Leavengood, Robin H.; Hough, Lannie; Bonilla, Nanette;
Johnson, Enid; Ramos, Mercita A.; Rick, Kerri; Prats, Luis
Ce: Katrina McDowell; Stephanie Skowronski
Subject: RE: Villas at Emerald Lakes| Royal Oak Hills Crossclaim Complaint
Mike —
We can either meet and confer or we can withdraw the motion, then meet and confer. These are not new issues and
you have known our position for months. How would you like to proceed?
Bruce R. Calderon, Esq.
Partner
MMP:S
Milber Makris Plousadis & Seiden, LLP
1900 N.W. Corporate Boulevard
Suite 440 East
Boca Raton, FL 33431
561.994.7310 ext. 301
561.994.7313 fax
calderon@milbermakris.com
This electronic mail transmission is privileged and confidential and is intended only for the review of the party to whom it is addressed. If you have received this
transmission in error, please immediately return it to the sender. Unintended transmission shall not constitute waiver of the attorney-client or any other privilege.
Wire instructions are not honored when made by email. Please do not respond to any email requesting account details and /or to transfer any funds. For more
information about MMP&S, please visit www.milbermakris.com
From: Walls, J. Michael
Sent: Monday, April 24, 2023 11:16 AM
To: Barri Reisch ; Leavengood, Robin H. ; Hough, Lannie
; Bonilla, Nanette ; Johnson, Enid
; Ramos, Mercita A. ; Rick, Kerri
; Prats, Luis
Cc: Bruce Calderon ; Katrina McDowell ; Stephanie
Skowronski
Subject: RE: Villas at Emerald Lakes| Royal Oak Hills Crossclaim Complaint
External Sender Detected
This is an external email. Be certain that the message is really from the person it claims to be from (by
clicking on sender's name to verify email address.) Be wary of any links, login requests, attachments, or
requests for personal or financial information that appear below this advisory.
Ms. Reisch,
You are correct that the business rules require a good faith conferral on issues raised by a motion to dismiss, but
that conferral is required by the business court rules before a motion to dismiss is filed. Here, Brown has
already filed its motion to dismiss, admittedly without conferring with counsel for Royal Oak Homes, and our
understanding is that Brown’s failure to confer prior to filing its motion to dismiss is grounds alone for denial of
Brown’s motion to dismiss. That result makes sense to us, because we fail to see how the purpose of the
conferral -- which our understanding is for the parties to attempt to resolve issues without the need for a motion
-- can be met here when Brown has already committed to its position on the issues by actually filing the motion.
In addition, your email was sent after four in the afternoon on Friday, requesting our availability for a call
today, on Monday, which we find to be short notice and again indicative of no real desire to engage in the
conferral contemplated by the local rule.
Sincerely,
Mike Walls
J. Michael Walls
Attorney at Law | Carlton Fields
4221 W. Boy Scout Blvd., Ste. 1000 | Tampa, Florida 33607-5780
Direct: 813.229.4257 | Fax: 813.229.4133
mwalls@carltonfields.com
From: Barri Reisch
Sent: Friday, April 21, 2023 4:01 PM
To: Leavengood, Robin H. ; Hough, Lannie <|hough@carltonfields.com>; Bonilla,
Nanette ; Johnson, Enid ; Ramos, Mercita A.
; Walls, J. Michael ; Rick, Kerri ;
Prats, Luis
Cc: Bruce Calderon ; Katrina McDowell ; Stephanie
Skowronski
Subject: Villas at Emerald Lakes| Royal Oak Hills Crossclaim Complaint
Good afternoon all,
We are reaching out regarding Royal Oak Homes’ Second Amended Crossclaim Complaint, in attempts to resolve the
issues raised in our pending Motion to Dismiss. The business court rules require that we have a good faith conferral on
these issues, and we are therefore hoping to coordinate a phone call with you to discuss the arguments raised therein
Please advise of your availability for a call on Monday, April 24, 2023. Thank you!
Best regards,
Barri A. Reisch
Partner
MMP:S
Milber Makris Plousadis & Seiden, LLP
1900 N.W. Corporate Boulevard
Suite 440 East
Boca Raton, FL 33431
561.994.7310
954.695.8811 cell
561.994.7313 fax
reisch@milbermakris.com
This electronic mail transmission is privileged and confidential and is intended only for the review of the party to whom it is addressed. If you have received this
transmission in error, please immediately return it to the sender. Unintended transmission shall not constitute waiver of the attorney-client or any other privilege.
For more information about MMP&S, please visit www.milbermakris.com
Filing # 113946094 E-Filed 09/24/2020 07:09:03 PM EXHIBIT B
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
CIVIL ACTION
LARRY LANHAM,
Plaintiff(s),
Case No: 11-2019-CA-002752-0001-XX
T SCHOLTEN BUILDER LLC, SHEELEY
ARCHITECTS INC, MICHAEL K SHEELEY,
MICHAEL D STEWART PE, ATLAS DESIGN &
ENGINEERING INC, THOMAS M SCHOLTEN,
MDS 2019 INC, AVANT YARDE INC, ATLAS
PILE DRIVING LLC, NSQUARE INC, AVANT
YARDE INC, NAPLES GULF CORPORATION,
ELITE CONSULTING OF SWFL LLC, TRENTO
TILE & MARBLE INC, CRONIN ENGINEERING
INC, FIRST MARBLE & TILE INC,
Defendant(s).
/
ORDER ON ATLAS DESIGN’S MOTION TO DISMISS COUNTS IV AND VI OF T.
SCHOLTEN BUILDER’S AMENDED CROSS CLAIM
THIS CAUSE having come before this Court on 9/8/2020 for hearing on the Motion to
Dismiss T. Scholten Ruilder, 1.1.C’s Amended CrossClaim, filed on 6/29/2020 by Atlas Design &
Engineering, Inc. and the Court having heard arguments of counsel and having reviewed the
Motion, the Amended Crossclaim filed on 6/19/20, the Court file and relevant case and statutory
law, and having reserved ruling, it is hereby ORDERED AND ADJUGED as follows:
1 The above Motion requests that the Court dismiss Count TV and VT of the Crossclaim filed by
T. Scholten Builder, T.1.C (hereafter referred to as “Scholten”) against Atlas Design &
Engineering, Inc. (herein referred to as “Atlas”). Count TV is a cause of action for professional
negligence and Count VI is for violation of the Florida Building Code, Section 553.70 et seq.
Atlas alleges that the statute of limitations applicable to professional negligence is 2 years not
4 years and that the Florida Building Code doesn’t create a cause of action against design
professionals other than as a measure of professional negligence.
The Court hereby DENIES the Motion as to Count IV as follows:
A. Atlas was clearly hired by Scholten as evidenced by the agreement between them that
Scholten has attached to its Crossclaim. As such, the applicable statute of limitations is 2
years per Section 95.11(4) of the Florida Statutes, not the 4 year time period allowed per
Section 95.11(3) for general negligence.
The face of Scholten’s Crossclaim indicates that the pleading was filed within the 2-year
statute of limitations. Atlas alleges that Scholten was notified of defects on 2/16/17 and
that this is evident from the allegations of the Plaintiff-Lanham in his various Complaints.
That this allegation appears in such Complaints is accurate, but it’s not set forth in any of
Scholten’s pleadings including the Crossclaim. All that is alleged in Scholten’s pleadings
is that Scholten was served with Notices of Claims beginning 4/18/18 (See Paragraphs 18-
25 of Scholten’s Amended Counterclaim) Scholten’s initial Crossclaim against Atlas was
filed on 3/20/2020. Therefore, it appears on the face of the pleadings that Scholten just
barely filed its Crossclaim against Atlas within the 2-year window. It may be that the statute
began to run on 2/17/17. However, that is a question of fact that exists outside of the face
of the Crossclaim.
The Court hereby GRANTS the Motion regarding Count VI WITH PREJUDICE. There is no
cause of action based on the Florida Building Code against design professionals. Such Code
may be used as a standard for professional negligence, but does not give rise to a cause of
action itself.
DONE AND ORDERED in Chambers, in Collier County, Florida, on this 24th day of
September, 2020.
Bay Ko
Sige by Kir, Easbah Vin 1-2019.04 002762 0001906 4020 18:04 dBO007
Elizabeth Krier, Circuit Court Judge
Electronic Service via eFiling Portal:
Alexander Jesus Martin ,
,
Anna D. Torres ,
Bruce R Calderon ,
Barri Reisch
Alicia Gross
Carmen M Rodriguez-Altieri ,
,
Debbie Sines Crockett , ,
Edward K. Cheffy, Esq. ,
Edward K Cheffy ,
Frank H Gassler
James L. Nulman
John A Chiocca , ,
Kir-Sheng Chen ,
John A. Chiocca ,
Michael C. Shue
N. Paul San Filippo Jr , ,
Robert B Ringhofer , ,
~
Sarah M. Papadelias ~,
~
Scott D. Rembold ,
Ashley A. Graham ,
Thamir A.R. Kaddouri Jr. , ,
Tiffany N. Hampton ,
Robert E Del-Toro
Penelope Thurmon Rowlett
Hector E Valdes-Ortiz
D. Bryan Hill
Filing # 115437279 E-Filed 10/22/2020 12:01:16 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
CIVIL ACTION
LARRY LANHAM,
Plaintiff(s),
Case No: 11-2019-CA-002752-0001-XX
T SCHOLTEN BUILDER LLC, SHEELEY
ARCHITECTS INC, MICHAEL K SHEELEY,
MICHAEL D STEWART PE, ATLAS DESIGN &
ENGINEERING INC, THOMAS M SCHOLTEN,
MDS 2019 INC, AVANT YARDE INC, ATLAS
PILE DRIVING LLC, NSQUARE INC, AVANT
YARDE INC, NAPLES GULF CORPORATION,
ELITE CONSULTING OF SWFL LLC, TRENTO
TILE & MARBLE INC, CRONIN ENGINEERING
INC, FIRST MARBLE & TILE INC,
Defendant(s).
/
ORDER ON MOTION FOR REHEARING
THIS CAUSE having come before this Court on the Motion for Rehearing of Defendants
Thomas M. Scholten and T. Scholten Builder LLC’s filed on 10/8/2020 joined also by Plaintiff-
Larry Lanham via Joinder filed on 10/9/2020, and the Court having reviewed the Motion and
Joinder and the Court file and being advised of the premises, it is ORDERED and ADJUDGED as
follows:
1 The Court issued an Order on Atlas Design’s Motion to Dismiss Counts IV and VI of T.
Scholten Builder’s Amended Cross-Claim that was filed on 9/24/2020. Said Order denied the
Motion to Dismiss as to Count IV, but granted it as to Count VI, which was a cause of action
for violation of Florida’s Building Code. Atlas is a design professional not a builder. The
10/8/2020-Motion for Rehearing is Denied. The Court has reviewed the relevant legal authority
and the Court file and finds no bases for changing its ruling as set forth in its 9/24/2020-Order.
The Court does however, find bases for reconsidering its Order on Defendants, Michael D.
Stewart, P.E.’s And Atlas Design & Engineering, Inc.” Motion to Dismiss Plaintiff Larry
Lanham’s Second Amended Complaint that was filed on 4/17/2020 and the Agreed Order o1
Atlas Design & Engineering, Inc.’s Motion to Dismiss T. Scholten Builder, LLC’s Cross
Claim, filed on 6/4/2020. The Scholten-Parties’ Motion for Rehearing is correct. The
9/24/2020-Order contradicts these earlier filed Orders. The Court finds however, that it was in
error regarding its rulings set forth in the 4/17/2020 and 6/4/2020-Orders as to the causes of
FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 10/22/2020 12:01:16 PM
action allegedly arising out of alleged violations of the Florida Building Code. The affected
Parties shall set a hearing or hearings on the Court’s reconsideration of the 4/17/2020 and
6/4/2020-Orders according to the Court’s scheduling procedures or may stipulate to conform
Orders to the Court’s 9/24/2020-Order.
DONE AND ORDERED in Chambers, in Collier County, Florida, on this 22nd day of
October, 2020.
Bata ko
_ianedby Kier, Eesbesh Vin 11-2010-CA.090762-0001
2% 1020/0020 12:0:00 M7
Elizabeth Krier, Circuit Court Judge
Electronic Service via eFiling Portal:
Alexander Jesus Martin ,
,
Anna D. Torres ,
Bruce R Calderon ,
Barri Reisch
Alicia Gross
Carmen M Rodriguez-Altieri ,
,
Debbie Sines Crockett , ,
Edward K. Cheffy, Esq. ,
Edward K Cheffy ,
Frank H Gassler
James L. Nulman
John A Chiocca , ,
Kir-Sheng Chen ,
John A. Chiocca ,
Michael C. Shue
N. Paul San Filippo Jr , ,
Robert B Ringhofer , ,
Sarah M. Papadelias ,
Scott D. Rembold ,
Linzie N. Roesler ,
Thamir A.R. Kaddouri Jr. , ,
Tiffany N. Hampton ,
Ashley Annc Graham
Robert E Del-Toro
Penelope Thurmon Rowlett
Hector E Valdes-Ortiz
D. Bryan Hill
Filing # 118895853 E-Filed 12/30/2020 02:31:09 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA - CIRCUIT CIVIL
LARRY LANHAM,
Plaintiff,
Vv. Case No. 2019-CA-2752
T. SCHOLTEN BUILDER, LLC, a Florida Limited
Liability Company; SHEELEY ARCHITECTS, INC.,
a Florida Profit Corporation; MICHAEL K. SHEELEY,
individually; ATLAS DESIGN & ENGINEERING, INC.;
and MICHAEL D. STEWART, PE, individually; MDS 2019,
INC., f/k/a NSQUARE, INC., a Florida Corporation; and
AVANT-YARDE, INC., a Florida Corporation,
Defendants.
T. SCHOLTEN BUILDER, LLC, a Florida
Limited Liability Company,
Third-Party Plaintiff,
Vv.
ATLAS PILE DRIVING, LLC, a Florida Limited Liability
Company; NSQUARE, INC., a Florida Corporation; AVANT-
YARDE, INC., a Florida Corporation; NAPLES GULF
CORPORATION d/b/a CUSTOM POOLS OF NAPLES,
a Florida Corporation; ELITE CONSULTING OF SWFL,
LLC, a Florida Limited Liability Company; TRENTO TILE &
MARBLE, INC. , a Florida Corporation; CRONIN
ENGINEERING, INC., a Florida Corporation,
Third-Party Defendants.
T. SCHOLTEN BUILDER, LLC, a Florida Limited Liability
Company,
Cross-Claim Plaintiff,
v.
SHEELEY ARCHITECTS, INC., a Florida Profit Corporation;
and ATLAS DESIGN & ENGINEERING, INC.,
Cross-Claim Defendants.
FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 12/30/2020 02:31:09 PM
Case No. 2019-CA-2752
Page 2
ORDER ON RECONSIDERATION OF 4/17/2020 AND 6/4/2020 ORDERS
THIS CAUSE having come before this Court for hearing on 12/16/2020, and the Court
having reviewed the file and being advised of the premises, it is ORDERED and ADJUDGED as
follows:
1 On 10/22/2020, the Court issued an Order denying Thomas M. Scholten and T. Scholten
Builder, LLC’s Motion for Rehearing. This Order confirmed the Court’s 9/24/2020 Order
on Atlas Design’s Motion to Dismiss Counts TV and VI ofT. Scholten Builder’s Amended
Cross Claim, specifically ruling that scction 553.84, Florida Statutcs, docs not apply to
design professionals such as Atlas Design, and dismissing Count VI of Scholten’s
Amended Cross Claim with prejudice.
Based on this ruling, the Court found bases for reconsidering its 4/17/2020 Order on
Defendants, Michael D. Stewart P-E.’s and Atlas Design & Engineering, Inc.’s Motion to
Dismiss Plaintiff Larry Lanham’s Second Amended Complaint and its 6/4/2020 Agreed
Order on Atlas Design & Engineering, Inc.’s Motion to Dismiss T. Scholten Builder,
LLC’s Cross Claim.
To the extent that the 4/17/2020 and 6/4/2020 Orders contradict the Court’s ruling that
section 553.84, Florida Statutes, does not apply to design professionals such as Atlas
Design and Michael D. Stewart, P.E., those orders are hereby conformed to the Court’s
tuling in the 9/24/2020 Order.
In order to conform the 4/17/2020 Order with the Court’s 9/24/20 ruling, Counts XIII and
XV of Plaintiff's Second Amended Complaint against Atlas Design and Michael D.
Stewart for violation of section 553.84 are hereby DISMISSED with prejudice.
Bisa Ko
Signed
by ir, Slanboth
Vn 11 2010 CA 000752 0003 1% 1290/2000 14.4050 Sz
Electronic Service List
Alexander Jesus Martin ,
,
Anna D. Torres ,
Bruce R Calderon ,
Case No. 2019-CA-2752
Page 3
Barri Reisch
Carmen M Rodriguez-Altieri ,
,
Debbie Sines Crockett , ,
Edward K. Cheffy, Esq. ,
Edward K Cheffy ,
Frank H Gassler
James L. Nulman
John A Chiocca ,
Kir-Sheng Chen ,
John A. Chiocca ,
Michael C. Shue
N. Paul San Filippo Jr , ,
Robert B Ringhofer , ,
Sarah M. Papadelias ,
Scott D. Rembold ,
Linzie N. Roesler ,
Thamir A.R. Kaddouri Jr. , ,
Tiffany N. Hampton ,
Ashley Anne Graham
Robert E Del-Toro
Penelope Thurmon Rowlett
Hector E Valdes-Ortiz
Alicia Megan Zwcig
D. Bryan Hill
Filing # 123265066 E-Filed 03/17/2021 02:15:49 PM
EXHIBIT C
IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT
IN AND FOR DUVAL COUNTY, FLORIDA
SUMMER KEY CONDOMINIUM
ASSOCIATION, INC., a Florida Corporation,
Plaintiff, CASE NO.: 16-2020-CA-000652
Vv.
DR. HORTON _ INC. -JACKSONVILLE;
WEINTRAUB ENGINEERING AND
INSPECTIONS, INC., F/K/A WEINTRAUB
INSPECTIONS AND FORENSICS, INC.; et. al.,
And All Related Actions,
/
ORDER GRANTING (IN PART) DEFENDANT WEINTRAUB
ENGINEERING AND INSPECTIONS, INC.’S MOTION TO DISMISS
AND, ALTERNATIVELY, MOTION FOR MORE DEFINITE STATEMENT
AND/OR MOTION TO COMPEL SEPARATE STATEMENTS OF CLAIM
THIS CAUSE, having come before the Court on March 8, 2021 (the “Hearing”) on
Defendant, Weintraub Engineering and Inspections, Inc. f/k/a Weintraub Inspections and Forensic,
Inc.’s (“Weintraub”), Motion to Dismiss and, Alternatively, Motion for More Definite Statement
and/or Motion to Compel Separate Statements of Claim (Doc. 554) (the “Motion”) and Plaintiff's
Response to the Motion (Doc. 1769) (the “Response”), and the Court, having considered the
Motion, the Response, the court file, having heard the arguments of counsel, and being otherwise
fully advised in the premises, hereby finds as follows:
1 Plaintiff, Summer Key Condominium Association, Inc. (“Plaintiff”), filed an
Amended Complaint (the “Amended Complaint”) in this action, which includes a claim against
Weintraub in Count 14 for violation of the Florida Building Code (the “FBC”) pursuant to section
553.84, Florida Statutes.
2 The Amended Complaint alleges that the Summer Key Condominium project was
constructed with defects and deficiencies that violate the Florida Building Code (Amended
Complaint, J§ 193-94), that Weintraub was retained by Defendant D.R. Horton, Inc. - Jacksonville
“to provide building code inspection services for the construction of the Subject Property, in
accordance with § 553.791, Florida Statutes” (Amended Complaint, { 51), and that Weintraub
“violated the FBC by inadequately and improperly approving of design plans with details violating
the FBC, and by failing to properly inspect and supervise the construction work at the Subject
Property . . .” (Amended Complaint, § 312).
3 Weintraub moved to dismiss Count 14 for failure to state a cause of action, arguing
that a cause of action under section 553.84, Florida Statutes, cannot be properly stated against an
inspector who is not alleged to have performed any construction, erection, alteration, repair, or
demolition of any structures.
4 The Amended Complaint does not allege that Weintraub performed any
construction, erection, alteration, repair, or demolition of any structures at the Summer Key
project, and in its Response and during the Hearing, Plaintiff confirmed that the only job Weintraub
had was to supervise and inspect the Project for FBC violations.
5 Pursuant to Casa Clara Condo. Ass'n, Inc. v. Charley Toppino & Sons, Inc., 588
So, 2d 631 (Fla. 3d DCA 1991), a party cannot state a cause of action under section 553.84, Florida
Statutes, against an inspector who is not alleged to have performed any construction, erection,
alteration, repair, or demolition of any structures.
6. The Amended Complaint therefore fails to state a cause of action against Weintraub
under section 553.84, Florida Statutes, because it does not allege that Weintraub performed any
construction, erection, alteration, repair, or demolition of any structures at the Summer Key
project.
7 For the forgoing reasons, the Motion is GRANTED IN PART without prejudice
as to Count 14 only. Plaintiff is hereby granted leave to file a Second Amended Complaint (as to
Weintraub) within 20 days of the date of the Hearing (on or before March 29, 2021). The claims
contained in Count 14 against Weintraub shall be deemed abandoned if Plaintiff does not file a
Second Amended Complaint within that timeframe.
8 Parties who have previously filed a response to Plaintiff's Amended Complaint
need not file a response to the Second Amended Complaint.
9. Plaintiff's filing of a Second Amended Complaint shall not serve to vacate any
defaults that have been entered.
10. The Motion also initially sought dismissal of Count 15, Professional Negligence,
but that portion of the Motion was withdrawn by Weintraub prior to (and during) the Hearing;
accordingly, Weintraub has 20 days from the date of the Hearing (on or before March 29, 2021)
to answer Count 15.
DONE and ORDERED in Chambers at Jacksonville, Duval County, Florida, on this
Le i
(7 day of March, 2021.
Honorable ffary L. Wilkinson
Circuit C Judge
THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT
IN AND FOR ST. JOHNS COUNTY, FLORIDA
STONEHAVEN AT ABERDEEN
HOMEOWNERS ASSOCIATION, INC.,
Case No.: CA20-662
Plaintiff,
Vv
D.R. HORTON INC. -JACKSONVILLE;
RAYMOND CROSBY; WEINTRAUB
ENGINEERING AND _ INSPECTIONS, INC.,
F/K/A WEINTRAUB INSPECTIONS AND
FORENSICS, INC.; et al.,
Defendants,
And All Related Actions,
/
ORDER GRANTING DEFENDANT WEINTRAUB ENGINEERING AND
INSPECTIONS INC.’S MOTION TO DISMISS COUNT 9 OF FOURTH AMENDED
COMPLAINT AND, ALTERNATIVELY, MOTION FOR MORE DEFINITE
ST EMEN
THIS CAUSE, having come before the Court on March 8, 2022 (the “Hearing”) on
Defendant, Weintraub Engineering and Inspections, Inc. f/k/a Weintraub Inspections and
Forensic, Inc.’s (“Weintraub”), Motion to Dismiss Fourth Amended Complaint and,
Alternatively, Motion For More Definite Statement (the “Motion”), filed November 29, 2021,
and Plaintiff, Stonehaven at Aberdeen Homeowners Association, Inc.’s, Response to the Motion
(the “Response”), filed February 7, 2022, and the Court, having considered the Motion, the
Response, the court file, having heard the arguments of counsel, and being otherwise fully
advised in the premises, hereby finds as follows:
Filed Tor record Usi2Zy/2UZ2 1U.92 AWM ULIerK OT VOUFT ST. yonns Vounty, FL
1 On November 18, 2021, Plaintiff filed its Fourth Amended Complaint (the
“Fourth Amended Complaint’) in this action, which includes a claim against Weintraub in Count
9 for Violation of the Florida Building Code pursuant to section 553.84, Florida Statutes.
2 The Fourth Amended Complaint alleges that the Stonehaven at Aberdeen
Townhome project was constructed with defects and deficiencies that violate the Florida
Building Code (Fourth Amended Complaint, § 76), and it contains the follow allegations that are
pertinent to Weintraub:
22. WEINTRAUB is a Florida corporation and served as a consultant
and private provider retained by D.R. HORTON to provide building code
inspection services for the construction of the Subject Property, in
accordance with § 553.791, Florida Statutes, and thus had responsibility
for reviewing the plans, and supervising, inspecting, and approving of
construction at the Subject Property.
157. Based on information and belicf, WEINTRAUB were cngincers
and/or architects hired to inspect and/or approve the construction of the
Townhomes and common areas of the Community.
160. WEINTRAUB actively participated in the construction of the
Community, directly supervised and influenced the manner in which all of
the work was performed, and/or negligently created and/or negligently
approved conditions that were in violation of the applicable building codes
and as such committed violations of the applicable building codes, thereby
violating § 553.84, Fla. Stat., and § 553.79(5)(a), Fla. Stat.
3 Weintraub moved to dismiss Count 9 for failure to state a cause of action, arguing
(1) that a cause of action under section 553.84, Florida Statutes, cannot be properly stated against
an inspector who is not alleged to have performed any construction, erection, alteration, repair,
or demolition of any structures, and (2) that the Fourth Amended Complaint alleges that
Weintraub performed inspection services at the project but does not allege that Weintraub
performed any construction, erection, alteration, repair, or demolition at the project.
4. Pursuant to Casa Clara Condo. Ass'n, Inc. v. Charley Toppino & Sons, Inc., 588
So. 2d 631 (Fla. 3d DCA 1991), a party cannot state a cause of action under section 553.84,
Florida Statutes, against an inspector who is not alleged to have performed any construction,
erection, alteration, repair, or demolition of any structures.
5 The Fourth Amended Complaint does not allege that Weintraub performed any
construction, erection, alteration, repair, or demolition of any structures at the Stonehaven at
Aberdeen project.
6 Accordingly, Count 9 of the Fourth Amended Complaint fails to state a cause of
action against Weintraub under section 553.84, Florida Statutes.
a For the foregoing reasons, the Motion is GRANTED without prejudice. Plaintiff
is hereby granted leave to file a Fifth Amended Complaint within 20 days of this Order, to which
Weintraub shall have 20 days to respond. Count 9 and the allegations contained therein shall be
deemed abandoned and stricken from the Fourth Amended Complaint if Plaintiff docs not file a
Fifth Amended Complaint within that timeframe. Weintraub is under no obligation to answer
Count 8 until such time as all pleading objections to Count 9 have been resolved.
DONE AND ORDERED in chambers, in St. Johns County, Florida, on 29 day of
March, 2022.
IGE
e-Signed 3/29/2022 9:43 AM CA20-0662
CIRCUIT JUDGE
Conformed copies to:
All counsel of record
16673808v1
Filing # 166433570 E-Filed 02/08/2023 07:00:33 PM
IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT
IN AND FOR BROWARD
Preview
Filing # 174098684 E-Filed 05/26/2023 03:33:26 PM IN THE CIRCUIT COURT OF THE 9™ JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NO.: 2020-CA-002942-ON VILLAS AT EMERALD LAKE HOMEOWNERS ASSOCIATION, INC., a Florida not for profit corporation, Plaintiff, v ROYAL OAK HOMES, LLC, a Florida limited liability company; 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; 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; Defendant. / ROYAL OAK HOMES, LLC, a Florida limited liability company; Crossclaim Plaintiff, v ADVANCED WRAPPING AND CONCRETE SOLUTION 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; Crossclaim Defendants DEFENDANT/CROSSCLAIM DEFENDANT, BROWN + COMPANY ARCHITECTURE, INC.’s, REPLY TO ROYAL OAK HOMES, LCC’S RESPONSE TO THE MOTION TO DISMISS COMES NOW, Defendant/ Crossclaim Defendant, BROWN + COMPANY ARCHITECTURE, INC., (“Brown”), by and through the undersigned counsel and files this Reply to ROYAL OAK HOMES, LCC’S (“ROH”) Response in Opposition to Brown’s Motion to Dismiss Counts 28, 29 and 30 of ROH’s second amended Crossclaim Complaint and Motion to Strike Claims for Prejudgment Interest, and in support thereof states as follows: I Brown Complied with the Spirit of the Good Faith Conferral Requirement, But Counsel for ROH Refused to Participate Brown concedes that it did not seek to meet and confer with counsel for ROH until after the Motion to Dismiss was filed. Notwithstanding same, two days after the Motion to Dismiss was filed, on April 21, 2023, counsel for Brown contacted counsel for ROH to remedy the oversight and discuss the underlying arguments of the Motion to Dismiss and resolve any matters that could be resolved without the need for judicial intervention. Despite these attempts, counsel for ROH refused to engage in any such discussions with counsel for Brown because the Motion was already filed and counsel for ROH responded that “we fail to see how the purpose of the conferral—which our understanding is for the parties to attempt to resolve issues without the need for a motion—can be met here....” See email exchanged, attached hereto as Exhibit “A.” It is Brown’s position that it did attempt to resolve the issues raised in the Motion without the need for Court intervention, which is the spirit of the rule for which the meet and confer mandate was created, but counsel for ROH refused to engage in such discussions because of a technicality. As such, the Motion to Dismiss should not be denied outright merely because ROH refused to make any attempts to resolve the issues raised therein. I. ROH’s Cross-Complaint Does Not Allege Sufficient Facts to Establish that it has the Ability to Enforce the Contract ROH’s entire argument that it is entitled to bring a breach of contract claim, despite not being a named party to the contract, rests on its one allegation within the Crossclaim that “Royal Oak is a wholly-owned subsidiary and agent of Avatar Properties, Inc. and has standing to enforce the contract.” However, ROH’s allegation that it is an agent of Avatar Properties, Inc. is a barebones, conclusory allegation, and is insufficient to comply with Florida’s pleading requirements. A party must plead enough facts to state a plausible basis for its claim; bare-bone allegations are insufficient. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929, 68 Fed. R. Serv. 3d 661 (2007). ROH fails to plead the ultimate facts showing that it is an agent, and further, does not allege how, as a wholly-owned subsidiary of Avatar, it is an agent with the ability to enforce the contract that Avatar entered into. ROH’s argument is essentially that every wholly owned subsidiary is a principal’s agent, which is not only nonsensical, but is not supported by any Florida case law. Because ROH has not pled that it is the ‘real party in interest’ with sufficient ultimate facts, ROH has not established that it has standing to enforce any provision contained within the attached contract. Il. ROH’s Crossclaim Referencing the Contract Between Brown and Avatar Properties Does Not Establish the Elements of Duty and Breach Within its Motion to Dismiss, Brown alleges that Count 29 for professional negligence must be dismissed because ROH fails to include any allegations establishing that Brown had a duty to provide certain services that it allegedly did not provide, including a duty to provide details of the windows, waterproofing elements around the windows, and the exteriors of the building. ROH’s argument in response to that is essentially that it attached an eight-page contract to the Cross- complaint, and that somewhere within this eight-page contract, Brown’s alleged duties are included. This argument ignores the pleading requirements under Florida law. The onus does not lie on the defendant (or here, the crossclaim defendant) to determine what the Plaintiff (or here, the crossclaim plaintiff) is alleging; rather, the pleading requirements require that the crossclaim plaintiff to set forth the facts with sufficient particularity. Here, ROH’s cross-complaint fails to do. As such, ROH has not alleged a cause of action for professional negligence with sufficient particularity, and dismissal is proper. Iv. Florida Law has Consistently Held that Design Professionals Cannot be Found Liable for a Cause of Action of Violation of the Florida Building Code ROH also argues with regard to the cause of action brought against Brown for violation of Florida’s building code that “[a]rchitects are subject to, and can commit a violation of, the Florida Building Code, and hence, can be held liable under Section 553.84. This argument is in direct contradiction with numerous Orders throughout the state of Florida, finding that design professionals, such as Brown, cannot be held liable for the cause of action of Violation of Florida’s Building Code. See Lanham, Larry vs T Scholten Builder LLC, et al., 11-2019-CA-002752-0001-XX (L-300- 1020851), which is attached hereto as Exhibit “B,” as well as other Circuit Courts throughout Florida issuing similar Orders, Summer Key Condominium Association, Inc. v. DR. Horton et. al., 16-2020-CA-000652; Stonehaven at Aberdeen Homeowners Association, Inc. v. D.R. Horton, Inc. et. al., CA20-662; Miralago Estates I Neighborhood Assn, Inc. v. Lennar Homes, LLC et. al., CACE20018176, which are attached hereto as Exhibit “C.” V. ROH has Not Alleged the Prerequisites to Establish that it is Entitled to Prejudgment Interest Within its Response in Opposition to the Motion to Strike ROH’s claim for prejudgment interest, ROH does not argue that its claim is liquidated; rather, ROH argues that under Florida’s Loss Theory, “when a verdict liquidates damages on a plaintiff's out of pocket, pecuniary losses, plaintiff is entitled, as a matter of law, to prejudgment interest at the statutory rate from the date of that loss.” However, prejudgment interest on unliquidated damages is awardable only when two prerequisites are met: (1) there is an out-of-pocket pecuniary loss, and (2) there is a fixed date of loss. Albanese Popkin Hughes Cove, Inc. v. Scharlin, 141 So. 3d 743 (Fla. 3d DCA 2014). ROH’s Cross-Complaint fails to allege either of these prerequisites, and its response in opposition does not argue that it has; therefore, ROH has not established a claim for prejudgment interest, and such a claim must be stricken from the Cross-Complaint. WHEREFORE, Defendant/Crossclaim Defendant, Brown + COMPANY ARCHITECTURE, INC., respectfully requests that this Court enter an Order dismissing Counts 28, 29 and 30 from Royal Oak Homes, LLC Second Amended Crossclaim Complaint, and also striking the claims for prejudgment interest, and for any further relief this Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been electronically served via the Florida E-Filing Portal to counsel of record for the parties on the attached Service List, this 26th day of May, 2023. MILBER MAKRIS PLOUSADIS & SEIDEN, LLP Attorneys for Defendant, Brown + Company Architecture, Inc. 1900 NW Corporate Blvd., East Tower, Suite 440 Boca Raton, Florida 33431 bcalderon@milbermakris.com azgross@milbermakris.com breisch@milbermakris.com Telephone: 561-994-7310 Facsimile: 561-994-7313 By: _S:/ /Bruce Calderow Bruce R. Calderon Florida Bar No. 50448 Barri A. Reisch Florida Bar No. 107052 Alicia Z. Gross Florida Bar No. 0103210 SERVICE LIST Phillip E. Joseph, Esq. Evan J. Small, Esq. Jeffrey A. Widelitz Esq. Christopher S. Tribbey, Esq. Kacey L. Joyce, Esq. BALL JANIK, LLP 201 East Pine Street — Suite 600bet Orlando, FL 32801 pjoseph@balljanik.com small@balljanik.com jwidelitz@balljanik.com ctribbey@balljanik.com dtodd@balljanik.com bburton@balljanik.com rhansch@balljanik.com kjoyce@balljanik.com Counsel for Plaintiff, Villas at Emerald Lake Homeowners Association, Inc. Thamir A. R. Kaddouri, Jr., Esq. Beth A. Tobey, Esq. LAW OFFICE OF THAMIR A.R. KADDOURL JR., P.A. 3220 West Cypress Street Tampa, FL 33607 thamir.kaddouri@tampalaw.org beth.tobey@tampalaw.org Jessica.Ayala@Tampalaw.org Counsel for Defendant, Imperial Building Corporation Peter J. Kapsales, Esq. Margaret M. Efta, Esq. MILNE LAW GROUP, P.A. 301 East Pine Street — Suite 525 Orlando, FL 32801 pkapsales@milnelawgroup.com mefta@milnelawgroup.com eservice@milnelawgroup.com Counsel for Defendant, Weathermaster Building Products, Inc. Luis Prats, Esq. Robin H. Leavengood, Esq. Lannie D. Hough, Jr., Esq. James Michael Wells, Esq. CARLTON FIELDS, P.A. 4221 W. Boy Scout Boulevard Tampa, FL 33607-5780 rleavengood@carltonfields.com lhough@carltonfields.com nbonilla@carltonfields.com ejohnson@carltonfields.com mramos@carltonfields.com mwalls@carltonfields.com krick@carltonfields.com Iprats@carltonfields.com Counsel for Defendant, Royal Oak Homes, LLC Ashley Mattingly, Esq. Denise M. Anderson, Esq. BUTLER WEIHMULLER KATZ CRAIG 400 North Ashley Drive — Suite 2300 Tampa, FL 33602 mattingly@butler.legal dandersom@butler.legal kreick@butler.legal jorge@butler.legal Counsel for Defendant, Hugh MacDonald Construction, Inc. (HMC) Denise M. Anderson, Esq. David Mercer, Esq. BUTLER WEIHMULLER KATZ CRAIG LLP 400 North Ashley Drive — Suite 2300 Tampa, FL 33602 danderson@butler.legal dmercer@butler.legal jjacobs@butler.legal mmilligan@pbutler.legal Counsel for Defendant, Don King’s Concrete, Inc. Jayne Ann Pittman, Esq. Natalie Fischer, Esq. CONROY SIMBERG Two South Orange Avenue — Suite 300 Orlando, FL 32801 eserviceorl@conroysimberg.com jpittman@conroysimberg.com nfischer@conroysimberg.com mmaitland@conroysimberg.com Counsel for Defendant, Advanced Wrapping and Concrete Solutions Of Central Florida, Inc. William M. Woods, Esq. Joseph M. Cline, Esq. LAW OFFICE OF WILLIAM WOODS 100 S. Missouri Avenue — Suite 201 Clearwater, FL 33756 wwoods@willwoodslaw.com josephC@willwoodslaw.com MaritaL@willwoodslaw.com pleadings@willwoodslaw.com Counsel for All Glass Installation Corp. Monal Zipper, Esq. Jennifer Shippole, Esq. LAW OFFICE OF JENNIFER L. SHIPPOLE 14050 NW 14th Street, Suite 180 Sunrise, Florida 33323 jshippole@fednat.com mzipper@fednat.com pleadings@fednat.com Counsel for Atlantic Concrete Systems, Inc. Richard L. Russo, Esq. LAW OFFICE OF RICHARD L. RUSSO 505 Maitland Ave., Suite 1000 Altamonte Springs, FL 32701 rrusso@wfmblaw.com and Cole J. Copertino, Esq. WRIGHT, FULFORD, MOOREHEAD & BROWN, P.A. 505 Maitland Avenue, Suite 1000 Alamonte Springs, Florida 32701 ccopertino@wfmblaw.com cbraungart@wfmblaw.com lwilliams@wfmblaw.com Counsel for Well Hung Windows & Doors, LLC Chelsey “Chet” G. Moody, Jr., Esq. Mai M. Le, Esq. MOODY & GRAF, P.A. 1101 N. Lake Destiny Rd., Suite 200 Maitland, FL 32751 cmoody@moodygraf.com mle@moodygraf.com kbraund@moodygraf.com iperera@moodygraf.com Counsel for Wolf’s Irrigation & Landscaping, Inc. Joseph L. Zollner, Esq. LAW OFFICE OF J. CHRISTOPHER NORRIS P.O. Box 7217 London, KY 40742 joseph.zollner@libertymutual.com FloridaCDLegalMail@LibertyMutual.com Counsel for Lois Concrete Corp. Andrew E. Hollway, Esq. Tim Ford, Esq. HILL WARD HENDERSON 101 E. Kennedy Blvd., Suite 3700 Tampa, FL 33602 andrew.holway@hwhlaw.com tim. ford@hwhlaw.com rocco.cafaro@hwhlaw.com ron.espinal@hwhlaw.com kathy.wernsing@hwlaw.com tracy.coale@hwlaw.com derrick.calandra@hwlaw.com jill. kuty@hwhlaw.com Counsel for Weintraub Inspections & Forensics, Inc. n/k/a Weintraub Engineering and Inspections, Inc. Phillip S. Howell, Esq. Brendan C. Collins, Esq. GALLOWAY JOHNSON TOMPKINS BURR & SMITH 400 N. Ashley Drive, Suite 1000 Tampa, FL 33602 bcollins@gallowaylawfirm.com tampaservice@gallowaylawfirm.com phowell@gallowaylawfirm.com Counsel for Casey Hawkins Glass, Inc. Andrew T. Marshall, Esq. HAMILTON PRICE 2400 Manatee Ave. West, Bradenton, FL 34205 andrew@hamiltonpricelaw.com nancy@hamiltonpricelaw.com kelsey@hamiltonpricelaw.com and William M. Woods, Esq. Joseph M. Cline, Esq. LAW OFFICE OF WILLIAM WOODS 100 S. Missouri Avenue, Suite 201 Clearwater, Florida 33756 Wwoods@willwoodslaw.com Pleadings@willwoodslaw.com JosephC@willwoodslaw.com MaritaL@willwoodslaw.com Counsel for T&M Construction of Sanford, Inc Scott Ross, Esq. Mary O’Brien, Esq. GROELLE & SALMON, P.A 1715 N. Westshore Blvd., #320 Tampa, FL 33607 gstcourtdocs@gspalaw.com sross@gspalaw.com cebanks@gspalaw.com Counsel for Helberg Enterprises, LLC Todd M. Ladouceur, Esq. Jerrilynn Hadley, Esq. GALLOWAY, JOHNSON, TOMPKINS, BURR AND SMITH, PLC 118 E. Garden Street Pensacola, FL 32502 TMLConstruction@gallowaylawfirm.com Counsel for Hobbit Windows, LLC Jennifer Miller Brooks, Esq. Kira Tsiring, Esq. HAMILTON, MILLER & BIRTHISEL, LLP 150 Southeast Second Avenue, Suite 1200 Miami, Florida 33131 ktsiring@hamiltonmillerlaw.com jmiller@hamiltonmillerlaw.com jcasaccio@hamiltonmillerlaw.com Counsel for TGK Stucco, Inc. Wayne M. Alder, Esq. FISHER BROYLES, LLP 7668 NW 125" Way Pompano Beach, FL 33076 Wayne.alder@fisherbroyles.com wmalder@bellsouth.net Counsel for E.R.O. Construction, Inc. EXHIBIT A Katrina McDowell From: Bruce Calderon Sent: Monday, April 24, 2023 2:06 PM To: Walls, J. Michael; Barri Reisch; Leavengood, Robin H.; Hough, Lannie; Bonilla, Nanette; Johnson, Enid; Ramos, Mercita A.; Rick, Kerri; Prats, Luis Ce: Katrina McDowell; Stephanie Skowronski Subject: RE: Villas at Emerald Lakes| Royal Oak Hills Crossclaim Complaint Mike — We can either meet and confer or we can withdraw the motion, then meet and confer. These are not new issues and you have known our position for months. How would you like to proceed? Bruce R. Calderon, Esq. Partner MMP:S Milber Makris Plousadis & Seiden, LLP 1900 N.W. Corporate Boulevard Suite 440 East Boca Raton, FL 33431 561.994.7310 ext. 301 561.994.7313 fax calderon@milbermakris.com This electronic mail transmission is privileged and confidential and is intended only for the review of the party to whom it is addressed. If you have received this transmission in error, please immediately return it to the sender. Unintended transmission shall not constitute waiver of the attorney-client or any other privilege. Wire instructions are not honored when made by email. Please do not respond to any email requesting account details and /or to transfer any funds. For more information about MMP&S, please visit www.milbermakris.com From: Walls, J. Michael Sent: Monday, April 24, 2023 11:16 AM To: Barri Reisch ; Leavengood, Robin H. ; Hough, Lannie ; Bonilla, Nanette ; Johnson, Enid ; Ramos, Mercita A. ; Rick, Kerri ; Prats, Luis Cc: Bruce Calderon ; Katrina McDowell ; Stephanie Skowronski Subject: RE: Villas at Emerald Lakes| Royal Oak Hills Crossclaim Complaint External Sender Detected This is an external email. Be certain that the message is really from the person it claims to be from (by clicking on sender's name to verify email address.) Be wary of any links, login requests, attachments, or requests for personal or financial information that appear below this advisory. Ms. Reisch, You are correct that the business rules require a good faith conferral on issues raised by a motion to dismiss, but that conferral is required by the business court rules before a motion to dismiss is filed. Here, Brown has already filed its motion to dismiss, admittedly without conferring with counsel for Royal Oak Homes, and our understanding is that Brown’s failure to confer prior to filing its motion to dismiss is grounds alone for denial of Brown’s motion to dismiss. That result makes sense to us, because we fail to see how the purpose of the conferral -- which our understanding is for the parties to attempt to resolve issues without the need for a motion -- can be met here when Brown has already committed to its position on the issues by actually filing the motion. In addition, your email was sent after four in the afternoon on Friday, requesting our availability for a call today, on Monday, which we find to be short notice and again indicative of no real desire to engage in the conferral contemplated by the local rule. Sincerely, Mike Walls J. Michael Walls Attorney at Law | Carlton Fields 4221 W. Boy Scout Blvd., Ste. 1000 | Tampa, Florida 33607-5780 Direct: 813.229.4257 | Fax: 813.229.4133 mwalls@carltonfields.com From: Barri Reisch Sent: Friday, April 21, 2023 4:01 PM To: Leavengood, Robin H. ; Hough, Lannie <|hough@carltonfields.com>; Bonilla, Nanette ; Johnson, Enid ; Ramos, Mercita A. ; Walls, J. Michael ; Rick, Kerri ; Prats, Luis Cc: Bruce Calderon ; Katrina McDowell ; Stephanie Skowronski Subject: Villas at Emerald Lakes| Royal Oak Hills Crossclaim Complaint Good afternoon all, We are reaching out regarding Royal Oak Homes’ Second Amended Crossclaim Complaint, in attempts to resolve the issues raised in our pending Motion to Dismiss. The business court rules require that we have a good faith conferral on these issues, and we are therefore hoping to coordinate a phone call with you to discuss the arguments raised therein Please advise of your availability for a call on Monday, April 24, 2023. Thank you! Best regards, Barri A. Reisch Partner MMP:S Milber Makris Plousadis & Seiden, LLP 1900 N.W. Corporate Boulevard Suite 440 East Boca Raton, FL 33431 561.994.7310 954.695.8811 cell 561.994.7313 fax reisch@milbermakris.com This electronic mail transmission is privileged and confidential and is intended only for the review of the party to whom it is addressed. If you have received this transmission in error, please immediately return it to the sender. Unintended transmission shall not constitute waiver of the attorney-client or any other privilege. For more information about MMP&S, please visit www.milbermakris.com Filing # 113946094 E-Filed 09/24/2020 07:09:03 PM EXHIBIT B IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CIVIL ACTION LARRY LANHAM, Plaintiff(s), Case No: 11-2019-CA-002752-0001-XX T SCHOLTEN BUILDER LLC, SHEELEY ARCHITECTS INC, MICHAEL K SHEELEY, MICHAEL D STEWART PE, ATLAS DESIGN & ENGINEERING INC, THOMAS M SCHOLTEN, MDS 2019 INC, AVANT YARDE INC, ATLAS PILE DRIVING LLC, NSQUARE INC, AVANT YARDE INC, NAPLES GULF CORPORATION, ELITE CONSULTING OF SWFL LLC, TRENTO TILE & MARBLE INC, CRONIN ENGINEERING INC, FIRST MARBLE & TILE INC, Defendant(s). / ORDER ON ATLAS DESIGN’S MOTION TO DISMISS COUNTS IV AND VI OF T. SCHOLTEN BUILDER’S AMENDED CROSS CLAIM THIS CAUSE having come before this Court on 9/8/2020 for hearing on the Motion to Dismiss T. Scholten Ruilder, 1.1.C’s Amended CrossClaim, filed on 6/29/2020 by Atlas Design & Engineering, Inc. and the Court having heard arguments of counsel and having reviewed the Motion, the Amended Crossclaim filed on 6/19/20, the Court file and relevant case and statutory law, and having reserved ruling, it is hereby ORDERED AND ADJUGED as follows: 1 The above Motion requests that the Court dismiss Count TV and VT of the Crossclaim filed by T. Scholten Builder, T.1.C (hereafter referred to as “Scholten”) against Atlas Design & Engineering, Inc. (herein referred to as “Atlas”). Count TV is a cause of action for professional negligence and Count VI is for violation of the Florida Building Code, Section 553.70 et seq. Atlas alleges that the statute of limitations applicable to professional negligence is 2 years not 4 years and that the Florida Building Code doesn’t create a cause of action against design professionals other than as a measure of professional negligence. The Court hereby DENIES the Motion as to Count IV as follows: A. Atlas was clearly hired by Scholten as evidenced by the agreement between them that Scholten has attached to its Crossclaim. As such, the applicable statute of limitations is 2 years per Section 95.11(4) of the Florida Statutes, not the 4 year time period allowed per Section 95.11(3) for general negligence. The face of Scholten’s Crossclaim indicates that the pleading was filed within the 2-year statute of limitations. Atlas alleges that Scholten was notified of defects on 2/16/17 and that this is evident from the allegations of the Plaintiff-Lanham in his various Complaints. That this allegation appears in such Complaints is accurate, but it’s not set forth in any of Scholten’s pleadings including the Crossclaim. All that is alleged in Scholten’s pleadings is that Scholten was served with Notices of Claims beginning 4/18/18 (See Paragraphs 18- 25 of Scholten’s Amended Counterclaim) Scholten’s initial Crossclaim against Atlas was filed on 3/20/2020. Therefore, it appears on the face of the pleadings that Scholten just barely filed its Crossclaim against Atlas within the 2-year window. It may be that the statute began to run on 2/17/17. However, that is a question of fact that exists outside of the face of the Crossclaim. The Court hereby GRANTS the Motion regarding Count VI WITH PREJUDICE. There is no cause of action based on the Florida Building Code against design professionals. Such Code may be used as a standard for professional negligence, but does not give rise to a cause of action itself. DONE AND ORDERED in Chambers, in Collier County, Florida, on this 24th day of September, 2020. Bay Ko Sige by Kir, Easbah Vin 1-2019.04 002762 0001906 4020 18:04 dBO007 Elizabeth Krier, Circuit Court Judge Electronic Service via eFiling Portal: Alexander Jesus Martin , , Anna D. Torres , Bruce R Calderon , Barri Reisch Alicia Gross Carmen M Rodriguez-Altieri , , Debbie Sines Crockett , , Edward K. Cheffy, Esq. , Edward K Cheffy , Frank H Gassler James L. Nulman John A Chiocca , , Kir-Sheng Chen , John A. Chiocca , Michael C. Shue N. Paul San Filippo Jr , , Robert B Ringhofer , , ~ Sarah M. Papadelias ~, ~ Scott D. Rembold , Ashley A. Graham , Thamir A.R. Kaddouri Jr. , , Tiffany N. Hampton , Robert E Del-Toro Penelope Thurmon Rowlett Hector E Valdes-Ortiz D. Bryan Hill Filing # 115437279 E-Filed 10/22/2020 12:01:16 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CIVIL ACTION LARRY LANHAM, Plaintiff(s), Case No: 11-2019-CA-002752-0001-XX T SCHOLTEN BUILDER LLC, SHEELEY ARCHITECTS INC, MICHAEL K SHEELEY, MICHAEL D STEWART PE, ATLAS DESIGN & ENGINEERING INC, THOMAS M SCHOLTEN, MDS 2019 INC, AVANT YARDE INC, ATLAS PILE DRIVING LLC, NSQUARE INC, AVANT YARDE INC, NAPLES GULF CORPORATION, ELITE CONSULTING OF SWFL LLC, TRENTO TILE & MARBLE INC, CRONIN ENGINEERING INC, FIRST MARBLE & TILE INC, Defendant(s). / ORDER ON MOTION FOR REHEARING THIS CAUSE having come before this Court on the Motion for Rehearing of Defendants Thomas M. Scholten and T. Scholten Builder LLC’s filed on 10/8/2020 joined also by Plaintiff- Larry Lanham via Joinder filed on 10/9/2020, and the Court having reviewed the Motion and Joinder and the Court file and being advised of the premises, it is ORDERED and ADJUDGED as follows: 1 The Court issued an Order on Atlas Design’s Motion to Dismiss Counts IV and VI of T. Scholten Builder’s Amended Cross-Claim that was filed on 9/24/2020. Said Order denied the Motion to Dismiss as to Count IV, but granted it as to Count VI, which was a cause of action for violation of Florida’s Building Code. Atlas is a design professional not a builder. The 10/8/2020-Motion for Rehearing is Denied. The Court has reviewed the relevant legal authority and the Court file and finds no bases for changing its ruling as set forth in its 9/24/2020-Order. The Court does however, find bases for reconsidering its Order on Defendants, Michael D. Stewart, P.E.’s And Atlas Design & Engineering, Inc.” Motion to Dismiss Plaintiff Larry Lanham’s Second Amended Complaint that was filed on 4/17/2020 and the Agreed Order o1 Atlas Design & Engineering, Inc.’s Motion to Dismiss T. Scholten Builder, LLC’s Cross Claim, filed on 6/4/2020. The Scholten-Parties’ Motion for Rehearing is correct. The 9/24/2020-Order contradicts these earlier filed Orders. The Court finds however, that it was in error regarding its rulings set forth in the 4/17/2020 and 6/4/2020-Orders as to the causes of FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 10/22/2020 12:01:16 PM action allegedly arising out of alleged violations of the Florida Building Code. The affected Parties shall set a hearing or hearings on the Court’s reconsideration of the 4/17/2020 and 6/4/2020-Orders according to the Court’s scheduling procedures or may stipulate to conform Orders to the Court’s 9/24/2020-Order. DONE AND ORDERED in Chambers, in Collier County, Florida, on this 22nd day of October, 2020. Bata ko _ianedby Kier, Eesbesh Vin 11-2010-CA.090762-0001 2% 1020/0020 12:0:00 M7 Elizabeth Krier, Circuit Court Judge Electronic Service via eFiling Portal: Alexander Jesus Martin , , Anna D. Torres , Bruce R Calderon , Barri Reisch Alicia Gross Carmen M Rodriguez-Altieri , , Debbie Sines Crockett , , Edward K. Cheffy, Esq. , Edward K Cheffy , Frank H Gassler James L. Nulman John A Chiocca , , Kir-Sheng Chen , John A. Chiocca , Michael C. Shue N. Paul San Filippo Jr , , Robert B Ringhofer , , Sarah M. Papadelias , Scott D. Rembold , Linzie N. Roesler , Thamir A.R. Kaddouri Jr. , , Tiffany N. Hampton , Ashley Annc Graham Robert E Del-Toro Penelope Thurmon Rowlett Hector E Valdes-Ortiz D. Bryan Hill Filing # 118895853 E-Filed 12/30/2020 02:31:09 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA - CIRCUIT CIVIL LARRY LANHAM, Plaintiff, Vv. Case No. 2019-CA-2752 T. SCHOLTEN BUILDER, LLC, a Florida Limited Liability Company; SHEELEY ARCHITECTS, INC., a Florida Profit Corporation; MICHAEL K. SHEELEY, individually; ATLAS DESIGN & ENGINEERING, INC.; and MICHAEL D. STEWART, PE, individually; MDS 2019, INC., f/k/a NSQUARE, INC., a Florida Corporation; and AVANT-YARDE, INC., a Florida Corporation, Defendants. T. SCHOLTEN BUILDER, LLC, a Florida Limited Liability Company, Third-Party Plaintiff, Vv. ATLAS PILE DRIVING, LLC, a Florida Limited Liability Company; NSQUARE, INC., a Florida Corporation; AVANT- YARDE, INC., a Florida Corporation; NAPLES GULF CORPORATION d/b/a CUSTOM POOLS OF NAPLES, a Florida Corporation; ELITE CONSULTING OF SWFL, LLC, a Florida Limited Liability Company; TRENTO TILE & MARBLE, INC. , a Florida Corporation; CRONIN ENGINEERING, INC., a Florida Corporation, Third-Party Defendants. T. SCHOLTEN BUILDER, LLC, a Florida Limited Liability Company, Cross-Claim Plaintiff, v. SHEELEY ARCHITECTS, INC., a Florida Profit Corporation; and ATLAS DESIGN & ENGINEERING, INC., Cross-Claim Defendants. FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 12/30/2020 02:31:09 PM Case No. 2019-CA-2752 Page 2 ORDER ON RECONSIDERATION OF 4/17/2020 AND 6/4/2020 ORDERS THIS CAUSE having come before this Court for hearing on 12/16/2020, and the Court having reviewed the file and being advised of the premises, it is ORDERED and ADJUDGED as follows: 1 On 10/22/2020, the Court issued an Order denying Thomas M. Scholten and T. Scholten Builder, LLC’s Motion for Rehearing. This Order confirmed the Court’s 9/24/2020 Order on Atlas Design’s Motion to Dismiss Counts TV and VI ofT. Scholten Builder’s Amended Cross Claim, specifically ruling that scction 553.84, Florida Statutcs, docs not apply to design professionals such as Atlas Design, and dismissing Count VI of Scholten’s Amended Cross Claim with prejudice. Based on this ruling, the Court found bases for reconsidering its 4/17/2020 Order on Defendants, Michael D. Stewart P-E.’s and Atlas Design & Engineering, Inc.’s Motion to Dismiss Plaintiff Larry Lanham’s Second Amended Complaint and its 6/4/2020 Agreed Order on Atlas Design & Engineering, Inc.’s Motion to Dismiss T. Scholten Builder, LLC’s Cross Claim. To the extent that the 4/17/2020 and 6/4/2020 Orders contradict the Court’s ruling that section 553.84, Florida Statutes, does not apply to design professionals such as Atlas Design and Michael D. Stewart, P.E., those orders are hereby conformed to the Court’s tuling in the 9/24/2020 Order. In order to conform the 4/17/2020 Order with the Court’s 9/24/20 ruling, Counts XIII and XV of Plaintiff's Second Amended Complaint against Atlas Design and Michael D. Stewart for violation of section 553.84 are hereby DISMISSED with prejudice. Bisa Ko Signed by ir, Slanboth Vn 11 2010 CA 000752 0003 1% 1290/2000 14.4050 Sz Electronic Service List Alexander Jesus Martin , , Anna D. Torres , Bruce R Calderon , Case No. 2019-CA-2752 Page 3 Barri Reisch Carmen M Rodriguez-Altieri , , Debbie Sines Crockett , , Edward K. Cheffy, Esq. , Edward K Cheffy , Frank H Gassler James L. Nulman John A Chiocca , Kir-Sheng Chen , John A. Chiocca , Michael C. Shue N. Paul San Filippo Jr , , Robert B Ringhofer , , Sarah M. Papadelias , Scott D. Rembold , Linzie N. Roesler , Thamir A.R. Kaddouri Jr. , , Tiffany N. Hampton , Ashley Anne Graham Robert E Del-Toro Penelope Thurmon Rowlett Hector E Valdes-Ortiz Alicia Megan Zwcig D. Bryan Hill Filing # 123265066 E-Filed 03/17/2021 02:15:49 PM EXHIBIT C IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT IN AND FOR DUVAL COUNTY, FLORIDA SUMMER KEY CONDOMINIUM ASSOCIATION, INC., a Florida Corporation, Plaintiff, CASE NO.: 16-2020-CA-000652 Vv. DR. HORTON _ INC. -JACKSONVILLE; WEINTRAUB ENGINEERING AND INSPECTIONS, INC., F/K/A WEINTRAUB INSPECTIONS AND FORENSICS, INC.; et. al., And All Related Actions, / ORDER GRANTING (IN PART) DEFENDANT WEINTRAUB ENGINEERING AND INSPECTIONS, INC.’S MOTION TO DISMISS AND, ALTERNATIVELY, MOTION FOR MORE DEFINITE STATEMENT AND/OR MOTION TO COMPEL SEPARATE STATEMENTS OF CLAIM THIS CAUSE, having come before the Court on March 8, 2021 (the “Hearing”) on Defendant, Weintraub Engineering and Inspections, Inc. f/k/a Weintraub Inspections and Forensic, Inc.’s (“Weintraub”), Motion to Dismiss and, Alternatively, Motion for More Definite Statement and/or Motion to Compel Separate Statements of Claim (Doc. 554) (the “Motion”) and Plaintiff's Response to the Motion (Doc. 1769) (the “Response”), and the Court, having considered the Motion, the Response, the court file, having heard the arguments of counsel, and being otherwise fully advised in the premises, hereby finds as follows: 1 Plaintiff, Summer Key Condominium Association, Inc. (“Plaintiff”), filed an Amended Complaint (the “Amended Complaint”) in this action, which includes a claim against Weintraub in Count 14 for violation of the Florida Building Code (the “FBC”) pursuant to section 553.84, Florida Statutes. 2 The Amended Complaint alleges that the Summer Key Condominium project was constructed with defects and deficiencies that violate the Florida Building Code (Amended Complaint, J§ 193-94), that Weintraub was retained by Defendant D.R. Horton, Inc. - Jacksonville “to provide building code inspection services for the construction of the Subject Property, in accordance with § 553.791, Florida Statutes” (Amended Complaint, { 51), and that Weintraub “violated the FBC by inadequately and improperly approving of design plans with details violating the FBC, and by failing to properly inspect and supervise the construction work at the Subject Property . . .” (Amended Complaint, § 312). 3 Weintraub moved to dismiss Count 14 for failure to state a cause of action, arguing that a cause of action under section 553.84, Florida Statutes, cannot be properly stated against an inspector who is not alleged to have performed any construction, erection, alteration, repair, or demolition of any structures. 4 The Amended Complaint does not allege that Weintraub performed any construction, erection, alteration, repair, or demolition of any structures at the Summer Key project, and in its Response and during the Hearing, Plaintiff confirmed that the only job Weintraub had was to supervise and inspect the Project for FBC violations. 5 Pursuant to Casa Clara Condo. Ass'n, Inc. v. Charley Toppino & Sons, Inc., 588 So, 2d 631 (Fla. 3d DCA 1991), a party cannot state a cause of action under section 553.84, Florida Statutes, against an inspector who is not alleged to have performed any construction, erection, alteration, repair, or demolition of any structures. 6. The Amended Complaint therefore fails to state a cause of action against Weintraub under section 553.84, Florida Statutes, because it does not allege that Weintraub performed any construction, erection, alteration, repair, or demolition of any structures at the Summer Key project. 7 For the forgoing reasons, the Motion is GRANTED IN PART without prejudice as to Count 14 only. Plaintiff is hereby granted leave to file a Second Amended Complaint (as to Weintraub) within 20 days of the date of the Hearing (on or before March 29, 2021). The claims contained in Count 14 against Weintraub shall be deemed abandoned if Plaintiff does not file a Second Amended Complaint within that timeframe. 8 Parties who have previously filed a response to Plaintiff's Amended Complaint need not file a response to the Second Amended Complaint. 9. Plaintiff's filing of a Second Amended Complaint shall not serve to vacate any defaults that have been entered. 10. The Motion also initially sought dismissal of Count 15, Professional Negligence, but that portion of the Motion was withdrawn by Weintraub prior to (and during) the Hearing; accordingly, Weintraub has 20 days from the date of the Hearing (on or before March 29, 2021) to answer Count 15. DONE and ORDERED in Chambers at Jacksonville, Duval County, Florida, on this Le i (7 day of March, 2021. Honorable ffary L. Wilkinson Circuit C Judge THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT IN AND FOR ST. JOHNS COUNTY, FLORIDA STONEHAVEN AT ABERDEEN HOMEOWNERS ASSOCIATION, INC., Case No.: CA20-662 Plaintiff, Vv D.R. HORTON INC. -JACKSONVILLE; RAYMOND CROSBY; WEINTRAUB ENGINEERING AND _ INSPECTIONS, INC., F/K/A WEINTRAUB INSPECTIONS AND FORENSICS, INC.; et al., Defendants, And All Related Actions, / ORDER GRANTING DEFENDANT WEINTRAUB ENGINEERING AND INSPECTIONS INC.’S MOTION TO DISMISS COUNT 9 OF FOURTH AMENDED COMPLAINT AND, ALTERNATIVELY, MOTION FOR MORE DEFINITE ST EMEN THIS CAUSE, having come before the Court on March 8, 2022 (the “Hearing”) on Defendant, Weintraub Engineering and Inspections, Inc. f/k/a Weintraub Inspections and Forensic, Inc.’s (“Weintraub”), Motion to Dismiss Fourth Amended Complaint and, Alternatively, Motion For More Definite Statement (the “Motion”), filed November 29, 2021, and Plaintiff, Stonehaven at Aberdeen Homeowners Association, Inc.’s, Response to the Motion (the “Response”), filed February 7, 2022, and the Court, having considered the Motion, the Response, the court file, having heard the arguments of counsel, and being otherwise fully advised in the premises, hereby finds as follows: Filed Tor record Usi2Zy/2UZ2 1U.92 AWM ULIerK OT VOUFT ST. yonns Vounty, FL 1 On November 18, 2021, Plaintiff filed its Fourth Amended Complaint (the “Fourth Amended Complaint’) in this action, which includes a claim against Weintraub in Count 9 for Violation of the Florida Building Code pursuant to section 553.84, Florida Statutes. 2 The Fourth Amended Complaint alleges that the Stonehaven at Aberdeen Townhome project was constructed with defects and deficiencies that violate the Florida Building Code (Fourth Amended Complaint, § 76), and it contains the follow allegations that are pertinent to Weintraub: 22. WEINTRAUB is a Florida corporation and served as a consultant and private provider retained by D.R. HORTON to provide building code inspection services for the construction of the Subject Property, in accordance with § 553.791, Florida Statutes, and thus had responsibility for reviewing the plans, and supervising, inspecting, and approving of construction at the Subject Property. 157. Based on information and belicf, WEINTRAUB were cngincers and/or architects hired to inspect and/or approve the construction of the Townhomes and common areas of the Community. 160. WEINTRAUB actively participated in the construction of the Community, directly supervised and influenced the manner in which all of the work was performed, and/or negligently created and/or negligently approved conditions that were in violation of the applicable building codes and as such committed violations of the applicable building codes, thereby violating § 553.84, Fla. Stat., and § 553.79(5)(a), Fla. Stat. 3 Weintraub moved to dismiss Count 9 for failure to state a cause of action, arguing (1) that a cause of action under section 553.84, Florida Statutes, cannot be properly stated against an inspector who is not alleged to have performed any construction, erection, alteration, repair, or demolition of any structures, and (2) that the Fourth Amended Complaint alleges that Weintraub performed inspection services at the project but does not allege that Weintraub performed any construction, erection, alteration, repair, or demolition at the project. 4. Pursuant to Casa Clara Condo. Ass'n, Inc. v. Charley Toppino & Sons, Inc., 588 So. 2d 631 (Fla. 3d DCA 1991), a party cannot state a cause of action under section 553.84, Florida Statutes, against an inspector who is not alleged to have performed any construction, erection, alteration, repair, or demolition of any structures. 5 The Fourth Amended Complaint does not allege that Weintraub performed any construction, erection, alteration, repair, or demolition of any structures at the Stonehaven at Aberdeen project. 6 Accordingly, Count 9 of the Fourth Amended Complaint fails to state a cause of action against Weintraub under section 553.84, Florida Statutes. a For the foregoing reasons, the Motion is GRANTED without prejudice. Plaintiff is hereby granted leave to file a Fifth Amended Complaint within 20 days of this Order, to which Weintraub shall have 20 days to respond. Count 9 and the allegations contained therein shall be deemed abandoned and stricken from the Fourth Amended Complaint if Plaintiff docs not file a Fifth Amended Complaint within that timeframe. Weintraub is under no obligation to answer Count 8 until such time as all pleading objections to Count 9 have been resolved. DONE AND ORDERED in chambers, in St. Johns County, Florida, on 29 day of March, 2022. IGE e-Signed 3/29/2022 9:43 AM CA20-0662 CIRCUIT JUDGE Conformed copies to: All counsel of record 16673808v1 Filing # 166433570 E-Filed 02/08/2023 07:00:33 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD