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                                Filing # 130453805 E-Filed 07/12/2021 01:23:07 PM


        IN THE CIRCUIT COURT OF THE
        NINTH JUDICIAL CIRCUIT IN AND
        FOR OSCEOLA COUNTY, FLORIDA
        CASE NO: 2020-CA-002942

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

                Plaintiff,

        vs.

        ROYAL            OAK         HOMES,     LLC,    a Florida
        limited liability              company;     ADVANCED
        WRAPPING                       AND           CONCRETE
        SOLUTIONS                 OF    CENTRAL        FLORIDA,
        INC.,   a       Florida     corporation;     DON     I<.ING'
        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  IRRIGATIONS       &
        LANDSCAPING HOMES, INC.,       a Florida
        corporation;   BROWN    +   COMPANY
        ARCHITECTURE, _ INC.,        a   Florida
        corporation,

                Defendants.

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

                Crossclaim Plaintiff.
vs.

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,

         Crossclaim Defendants,

DON KING'S         CONCRETE        INC., a Florida
corporation.

         Third-Party Plaintiff.

v.

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.
THIRD-PARTY DEFENDANT ELRR.
                    CONSTYRUCTIONINC'S MOTION TO DISMISS.



        COMES       NOW        the Third-Party Defendant, E.R.O. CONSTRUCTION,                                  INC. ("ERO"), by

and through its undersigned attorneys,               and hereby moves              this Honorable     Court for the entry of an

Order dismissing or, in the alternative, staying or transferring                       proceedings against ERO herein and,

as grounds therefore, states as follows:

        1         Plaintiff    filed      the    instant    action     on     or   about   November       23,     2020,         alleging

construction defects and deficiencies related to the design and construction of the Emerald Lakes

Condominium      residential complex ("the Project").

        2.        On or about December 29, 2020, Defendant,                           ROYAL        OAK   HOMES,           LLC    filed a

Cross-Claim against DON            KING'S CONCRETE,                  INC. ("DKC") and others.

        3         DKC      filed a Third-Party             Complaint        ("the Third-Party       Complaint")         on March      15,

2021, against ERO       and others.       The claims against ERO               include Breach of Contract, Common                   Law

Indemnity,     Violation      of   Building        Code,      Negligence,          Contractual      Indemnity,      and     Equitable

Subrogation.

        4.        DKC      and ERO        entered into a Master Subcontractor                    Agreement      dated     January 14,

2016   ("the Contract").      A    copy     of the     Contract      is attached      to   the    third-party      Complaint          as

exhibit 2.

        5         The   contract       further     states    111 Article       16, that "All       disputes     among      under     this

Subcontractor or any bonds issued by either Contractor or its Surety or Subcontractor or its surety

(hereinafter "all disputes") shall be mediated as a condition precedent to litigation or arbitration."
DKC    and LIOS signed the Contract and are, therefore, bound by its provisions.!

                         6.    DKC    filed   the   Third-Party    Complaint     against   ERO    prematurely,          without      first

             fulfilling its obligations    under the Contract.       Specifically,   DKC    filed its Third-Party          Complaint

             without first mediating the dispute, which is           a   condition    precedent      to    litigation     under       the

             Contract between DKC         and LIOS.

                         7     The Court recognized in Getchell v. Suntrust Bank, 2016 WL              740603    (M.D. Fla. 2016)

             that, "Since the parties entered into a valid and enforceable agreement to               mediate disputes         arising

             out of the contract, Defendant has not waived its right to mediate, and no mediation                       has occurred,

             this action is premature.". Similarly, in 3-J Hospitality, LLC v Big Time Design, Inc., 2009 WL3586830,

             (S.D. Fla. Oct. 27, 2009), the Court found that the"...Plaintiff is bound to mediate the claims as a

             condition precedent to litigation and the complaint must be dismissed."

                         8     Article 16 of the Contract further states "If the dispute is litigated, it shall be resolved

             solely and exclusively in the Ninth Judicial Circuit Court of Florida in and for Seminole County,

             Florida."

                     9.        DKC    filed its Third-Party Complaint in Osceola County, Florida in violation of the

             terms of Article 16 of the Contract, stating that the sole and exclusive venue for litigation between

             DKC    and Lios is the Ninth Judicial Circuit Court of Florida in and for Seminole             County,     Florida.

                         10.   "Florida   courts recognize    a distinction    between     mandatory      jurisdiction     clauses      m

             contracts which require that a particular forum be the exclusive jurisdiction for litigation concerning

             the contract, and permissive jurisdiction clauses which only provide that there may                    be jurisdiction

             over such litigation in a particular forum.”         Shoppes Ltd. Partnership v Conn,        829 So.2d 356 (Fla. 5"

             DCA 2002). Article      16 of the Contract states that the sole and exclusive venue is Seminole

1 The copy of the contract attached to the third-party complaint omits page 8, which contains Article 16. However, its terms and
conditions are identical to the exhibit t 1 to the third-party complaint.
County, Florida. Given the exclusivity of the language, the clause is mandatory and DKC                           erred in


filing its Third-Party Complaint in Osceola County, Florida.

         11.        Likewise, in General Home Development Corp. v. Kwirant,                  819 So.2d 255 (Fla. 2d DCA

2002), the Court held that “contractual requirement that "any" action brought by the purchaser or

builder "shall" be in particular           county was susceptible to         only one interpretation - that the parties

had expressed an intent to limit venue to one specific locale county specified therein." Such is the

case   herein,    where   the   contract     clause   states   that   litigation   between   DKC    and   ERO   "shall   be

resolved solely and exclusively" in Seminole County, Florida.

         12.        Additionally, DKC         failed to comply with Florida Statutes § 558. The failure to

comply with this 558            as a condition precedent mandates that this action should be stayed or

dismissed.

         13.        Chapter 558, Florida Statutes, sets forth pre-suit procedures that must be followed

prior to bringing an action involving construction defects. See§ 558.005,                          Fla. Stat. Plaintiff has

yet to comply with any of these procedures. Specifically, Chapter 558, Florida Statutes, states:

               A claimant may not file an action subject to this chapter without first complying
               with the requirements of this chapter. If a claimant files an action alleging a
               construction defect without first complying with the requirements of this
               chapter, on timely motion by a party to the action the court shall abate the
               action, without prejudice, and the action may not proceed until the claimant
               has complied with such requirements.


               Section 558.002(4),     Florida Statutes, defines a "construction defect" as:
               a deficiency in, or a deficiency arising out of, the design, specifications,
               surveying, planning, supervision, observation of construction, or
                 construction repair, alteration, or remodeling of real property resulting
from:
                      (a) Defective material, products, or components used in the construction or remodeling.
                      (b) A violation of the applicable codes in effect at the time of construction or remodeling
          which gives rise to a cause of action pursuant to Section 553.84;
                 (c) A failure of the design of real property to meet the applicable professional standards
          of care at the time of governmental approval; or
                  (d) A failure to construct or remodel real property in accordance with accepted trade
          standards for good and workmanlike construction at the time of construction.


                WHEREFORE,             Third-Party     Defendant,   E.R.O.   CONSTRUCTION,              INC., hereby moves

       this Honorable Court for the entry of an Order dismissing the Third-Party                 Complaint       for improper
       venue    and    premature   filing   in light   of the   mediation    provision   or,   in the    alternative,   staying

       proceedings until such time as mediation          can occur, or staying the action so that Chapter 558 may be
       complied with, and for all such further relief as this Court deems just and proper.




                                                         CERTIFICATE OF SERVICE
        I HEREBY CERTIFY that on the 12th day of July 2021, I electronically filed the foregoing
document with the Clerk of Court using the State's E-Filing Portal to all persons on the Court's Electronic
Service List.
                                                                                                              Wayne M. Alder, Esq
                                                                                                               Fisher Broyles, LLP
                                                                                                              7668 NW      125th Way
                                                                                                        Pompano Beach, Fla 33076
                                                                                                    Telephone: (954) 603-6174
                                                                                               Wayne.alder@fisherbroyles.com

                                                                                                               By: /s/ Wayne Alder
                                                                                               WAYNE        M. ALDER, ESQUIRE
                                                                                                          Florida Bar No. 0850616