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Filing # 172784143 E-Filed 05/09/2023 04:25:26 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
VILLAS AT EMERALD LAKE
HOMEOWNERS ASSOCIATION, INC., a
Florida not for profit
corporation,
Plaintiff,
v. CASE NO.: 2020-CA-002942-ON
ROYAL OAK HOMES, LLC, a Florida ROYAL OAK HOMES, LLC’S
limited liability company, f/k/a AVH AMENDED RESPONSE IN
ACQUISITION LLC; ADVANCED OPPOSITION TO BROWN +
WRAPPING AND CONCRETE COMPANY
SOLUTIONS OF CENTRAL FLORIDA, ARCHITECTURE, INC.’S
INC., a Florida corporation; DON KING’S MOTION TO DISMISS
CONCRETE, INC., a Florida corporation; COUNTS TWENTY-EIGHT,
HUGH MACDONALD CONSTRUCTION, TWENTY-NINE, AND
INC., a Florida corporation; IMPERIAL THIRTY OF ROYAL OAK
BUILDING CORPORATION, a Florida HOMES, LLC’S SECOND
corporation; PREMIER PLASTERING OF AMENDED CROSSCLAIM
CENTRAL FLORIDA, INC. n/k/a TGK COMPLAINT AND MOTION
STUCCO, INC., a Florida corporation; TO STRIKE CLAIMS FOR
WEATHERMASTER BUILDING PREJUDGMENT INTEREST
PRODUCTS, INC., a Florida corporation; [DKT. 751]
WEINTRAUB INSPECTIONS &
FORENSICS, INC. n/k/a WEINTRAUB
ENGINEERING AND INSPECTIONS,
INC., a Florida corporation; THE DIMILLO
GROUP, LLC, a Florida limited liability
company; WOLF’S IRRIGATION &
LANDSCAPING, INC., a Florida
corporation; SUMMERPARK HOMES,
INC., a Florida corporation; BROWN +
COMPANY ARCHITECTURE, INC., a
Florida corporation;
EXPERT PAINTING & PRESSURE
WASHING, INC., a Florida corporation;
132626384.7
Defendants.
/
ROYAL OAK HOMES, LLC, f/k/a AVH
ACQUISITION,
Crossclaim Plaintiff,
v.
ADVANCED WRAPPING AND
CONCRETE SOLUTIONS OF CENTRAL
FLORIDA, INC., a Florida corporation;
DON KING’S CONCRETE, INC., a Florida
corporation; HUGH MACDONALD
CONSTRUCTION, INC., a Florida
corporation; IMPERIAL BUILDING
CORPORATION, a Florida corporation;
PREMIER PLASTERING OF CENTRAL
FLORIDA, INC. n/k/a TGK STUCCO, INC.,
a Florida corporation; WEATHERMASTER
BUILDING PRODUCTS, INC., a Florida
corporation; WEINTRAUB INSPECTIONS
& FORENSICS, INC. n/k/a WEINTRAUB
ENGINEERING AND INSPECTIONS,
INC., a Florida corporation; WOLF’S
IRRIGATION & LANDSCAPING, INC., a
Florida corporation; BROWN + COMPANY
ARCHITECTURE, INC., a Florida
corporation; EXPERT PAINTING &
PRESSURE WASHING, INC., a Florida
corporation;
Crossclaim Defendants.
/
WEATHERMASTER BUILDING
PRODUCTS, INC., a Florida Corporation;
DON KING’S CONCRETE INC., a Florida
Corporation,
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Third-Party Plaintiff,
v.
ALL GLASS INSTALLATION COPRP., a
Florida corporation; CASEY HAWKINS
GLASS, INC., a Florida corporation; DEAN
NESBIT, LLC, a Florida limited liability
company; HELBERG ENGERPRISES,
LLC, a Florida limited liability company;
HOBBIT WINDOWS, LLC, a Florida
limited liability company; T&M
CONSTRUCTION OF SANFORD, INC., a
Florida corporation; WELL DONE
WINDOWS, INC., a Florida corporation;
and WELL HUNG WINDOWS & DOORS,
LLC, a Florida limited liability company;
E.R.O. CONSTRUCTION, INC., a Florida
Corporation; LIOS CONCRETE CORP., a
Florida Corporation; and ATLANTIC
CONCRETE SYSTEMS, INC., a Florida
Corporation,
Third-Party Defendants.
/
ROYAL OAK HOMES, LLC’S AMENDED RESPONSE IN OPPOSITION
TO BROWN + COMPANY ARCHITECTURE, INC.’S MOTION TO
DISMISS COUNTS TWENTY-EIGHT, TWENTY-NINE, AND THIRTY OF
ROYAL OAK HOMES, LLC’S SECOND AMENDED CROSSCLAIM
COMPLAINT AND MOTION TO STRIKE CLAIMS FOR
PREJUDGMENT INTEREST
In its Second Amended Complaint, Plaintiff alleges design and construction
defects to a townhome development known as Villas at Emerald Lake Townhomes
(the “Project”). Plaintiff sues Royal Oak Homes, LLC (“Royal Oak”) as the general
contractor for the Project, and Royal Oak’s subcontractors who performed the
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allegedly defective work. Plaintiff also sues Brown + Company Architecture, Inc.
(“Brown”), the Project’s architect, and alleges that Brown’s design details in the
Project plans violated the Florida Building Code and Brown’s standard of care as an
architect. Second Amended Complaint, ¶¶ 50, 275, 284.
Royal Oak filed an Answer and Defenses to the Second Amended Complaint
and Second Amended Crossclaim Complaint [Dkt. 738] (the “Crossclaim”) against
Brown and the subcontractors implicated by the design and construction defect
allegations in Plaintiff’s Second Amended Complaint. Royal Oak sued Brown for
breach of its contract to prepare the plans for the Project (Count Twenty-Eight),
professional negligence (Count Twenty-Nine), and violation of Section 553.84,
Florida Statutes (Count Thirty) as a result of the alleged design defects with the
Plans.
Brown moves to dismiss the Crossclaim, but Brown failed to comply with this
Court’s Rule 5.3 requiring Brown to confer with Royal Oak’s counsel before filing
any motion in a good faith effort to resolve the issues raised by Brown’s Motion.
BCP 5.3. For this reason alone, Brown’s Motion to Dismiss should be denied.
Brown moves to dismiss Royal Oak’s breach of contract claim claiming Royal
Oak lacks standing to bring this claim because the Professional Services Agreement
attached to the Crossclaim as Exhibit “J” (“PSA”) is between Brown and Royal
Oak’s parent company, Avatar Properties Inc. (“Avatar”). Brown ignores Royal
Oak’s allegation that Royal Oak is a wholly-owned subsidiary and agent of Avatar,
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and as such, entitled to sue Brown for breach of the contractual obligations to defend
and indemnify Royal Oak. The PSA attached to and incorporated in the Crossclaim
makes that clear, providing that Brown shall defend and indemnify Avatar and “its
agents.” PSA, ¶ 7. As a result, Royal Oak has standing to sue Brown for breach of
contract just as alleged in the Crossclaim and provided in the attached PSA.
Brown further moves to dismiss Royal Oak’s breach of contract claim,
arguing that the indemnity provision in Brown’s PSA violates Section 725.06,
Florida Statutes, because it contains no monetary limitation. The indemnification
provision does not require Brown to indemnify Royal Oak for its own negligence,
nor is Royal Oak suing for Brown to indemnify Royal Oak for its own negligence;
thus, no monetary limitation is required by Section 725.06. For this additional
reason, Brown’s motion to dismiss this claim should be denied.
Brown moves to dismiss the professional negligence claim, arguing that Royal
Oak did not allege Brown’s scope of work included providing specific details of the
elements -- like windows -- found in townhomes for which Brown was retained to
prepare plans for the Project. Royal Oak’s allegations that Brown was required to
perform its architectural services under the PSA, including “signing and sealing –
townhomes” plans for the Project, consistent with the skill and care of architects in
Florida, more than meets the pleading requirements in Florida. For this reason,
Brown’s motion to dismiss the professional negligence count should be denied.
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Next, Brown moves to dismiss Royal Oak’s claim under Section 553.84,
Florida Statutes, for violation of the building code, claiming that architects are not
subject to liability under that section. Brown’s argument lacks any legal basis and
should be denied. Architects are subject to, and can commit a violation of, the
Florida Building Code, and hence, can be held liable under Section 553.84.
Lastly, Brown’s motion to strike Royal Oak’s claims for prejudgment interest
should be denied. The Florida Supreme Court has clearly held that prejudgment
interest is proper on all awards for pecuniary damages, and Royal Oak is not seeking
non-pecuniary relief.
LEGAL STANDARD
Pursuant to Florida Rule of Civil Procedure 1.110(b)(2), a pleading must
contain “a short and plain statement of the ultimate facts showing that the pleader is
entitled to relief.” In considering a motion to dismiss, the allegations in a complaint
should be taken as true. Winter v. Miami Beach Healthcare Group, Ltd., 917 So. 2d
973, 974 (Fla. 3d DCA 2005). Applying this standard, Brown’s Motion should be
denied.
ARGUMENT
I. Brown Violated the Good Faith Conference Requirement.
Brown’s Motion should be denied for its failure to abide by Rule 5.3 of the
Business Court Procedures (“BCP”) requiring a moving party to confer in good faith
with counsel for the opposing party before filing any motion and to include a good
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faith conference certification in the motion. See BCP 5.3. Brown did not attempt to
confer with Royal Oak’s counsel before filing the Motion, and the Motion contains
no good faith conference certification. Two days after filing the Motion, Brown’s
counsel e-mailed Royal Oak’s counsel requesting a phone call to discuss the issues
raised. Royal Oak questions whether Brown intended to confer in good faith, as the
Motion resurrects arguments from prior motions that were previously resolved by
good faith conferral and amendment. Because Brown’s Motion fails to comply with
BCP 5.3, it should be denied on that basis alone.
II. Count Twenty-Eight: Brown’s Motion to Dismiss the Breach of Contract
Claim Based on Lack of Standing Should be Denied.
Brown argues that Royal Oak’s breach of contract claim in Count Twenty-
Eight of the Crossclaim should be dismissed for lack of standing. Brown argues that
Royal Oak lacks standing to enforce the PSA, because its parent company, Avatar,
was the contracting party with Brown. Motion, § I. Brown totally ignores Royal
Oak’s allegation that “Royal Oak is a wholly-owned subsidiary and agent of Avatar
Properties, Inc. and has standing to enforce the contract.” Crossclaim, ¶ 226
(emphasis added). The PSA expressly provides:
[Brown] shall be solely responsible for and shall protect, defend,
indemnify, save and hold harmless [Avatar], and its agents…harmless
against any and all…claims…arising from or in connection with (a)
[Brown’s] active negligence or willful misconduct; or (b) the breach of
a statutory, regulatory or common law duty or obligation on the part of
[Brown].
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PSA, ¶ 7 (emphasis added). Because the indemnification provision expresses a clear
intent to benefit Avatar’s agents, Royal Oak has standing to sue to enforce the
indemnification provision, even though not a party to the PSA. Mendez v. Hampton
Ct. Nursing Ctr., LLC, 203 So. 3d 146, 148–49 (Fla. 2016) (explaining that the
doctrine of third-party beneficiaries provides that under certain circumstances, a
person may sue to enforce a contract, even though the person is not a party to the
contract, such as where the clear or manifest intent of the contracting parties is that
the contract directly benefit the third party); Dingle v. Dellinger, 134 So. 3d 484,
488 (Fla. 5th DCA 2014) (same).
The two cases that Brown cites are inapposite here, having nothing to do with
the standing of an agent to sue for breach of contract on its own behalf as the intended
beneficiary of a principal’s contract. Motion, § I (citing Weiss v. Johansen, 898 So.
2d 1009, 1011 (Fla. 4th DCA 2005) (concerning standing in a fraud and breach of
warranty action); Kumar Corp. v. Nopal Lines, Ltd., 462 So. 2d 1178, 1182 (Fla. 3d
DCA 1985) (concerning standing of seller of goods to sue carrier for buyer’s losses
as the buyer’s agent or subrogee)). Thus, the Motion should be denied as to Count
Twenty-Eight as to lack of standing.
III. Count Twenty-Eight: Brown’s Motion to Dismiss the Breach of Contract
Claim Pursuant to Section 725.06(1), Florida Statutes, Should be Denied
Because the Monetary Limitation Requirement of Section 725.06(1) is
Inapplicable to the PSA.
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Brown argues that the PSA’s indemnification provision is void and
unenforceable under Section 725.06(1), Florida Statutes, because it does not contain
a monetary limitation. Motion, § I. However, Section 725.06 voids only that
“portion” of an indemnification provision in which an indemnitee seeks indemnity
for its own negligence, unless the indemnification provision contains a monetary
limit of the amount of indemnification. §725.06(1), Fla. Stats. (2020).1 Section
725.06(1) is inapplicable here because the indemnification provision does not
require Brown to indemnify Royal Oak for its own negligence. It clearly provides
that Brown shall indemnify Avatar or “its agents” for claims “arising from or in
connection with (a) [Brown’s] active negligence or willful misconduct; or (b) the
breach of a statutory, regulatory or common law duty or obligation on the part of
[Brown].” PSA, ¶ 7 (emphasis added). As such, the Motion should be denied based
on the plain language of Section 725.06(1), Florida Statutes.
IV. Count Twenty-Nine: Brown’s Motion to Dismiss the Professional
Negligence Claim Should be Denied Because Royal Oak Adequately
Alleged the Duty and Breach Elements.
In Count Twenty-Nine, Royal Oak alleges a cause of action for professional
negligence against Brown. Crossclaim, ¶¶ 236-244. Brown’s Motion hinges on
1
Section 725.06, Florida Statutes, provides in relevant part that “[a]ny portion of any agreement
… wherein any party … promises to indemnify … the other party … for damages … caused in
whole or in part by any act, omission, or default of the indemnitee arising from the contract or
its performance, shall be void and unenforceable unless the contract contains a monetary limitation
on the extent of the limitation….” §725.06, Fla. Stats. (2020) (emphasis added).
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whether or not the Crossclaim contains enough allegations of fact regarding the
scope of Brown’s requested services for the Project. Motion, § II.
Brown’s “requested services” are no mystery as the PSA is attached as an
exhibit to the Crossclaim as Exhibit “J.” Harry Pepper & Assocs., Inc. v. Lasseter,
247 So. 2d 736, 736 (Fla. 3d DCA 1971) (“Any exhibit attached to a pleading shall
be considered a part thereof for all purposes.”) (citing Rule 1.130(b), Fla. R. Civ. P.)
The PSA plainly states that Brown will provide the consulting services which
include “signing and sealing – townhomes,” “control drawings (townhomes),” and
“Bid set creation.” Crossclaim, Exhibit “J” at Exhibit A.
As the Counterclaim alleges, Plaintiff alleges Brown failed to ensure the plans
were sufficiently detailed to meet Code requirements – including its failure to
sufficiently detail the windows, waterproofing elements around the windows, and
the exteriors of the buildings, resulting in roofing, waterproofing, building envelope,
and site defects and deficiencies. Crossclaim, at ¶ 241; Second Amended Complaint,
¶¶ 50, 275, 284. Royal Oak alleges that, if Plaintiff is able to prove such allegations,
they constitute a breach of Brown’s duty of care, causing damages to Royal Oak.
Crossclaim, ¶¶ 242-244. See School Bd. of Broward County v. Pierce Goodwin
Alexander & Linville, 137 So.3d 1059 (Fla. 4th DCA 2014) (holding that architects
have a duty to prepare plans and specifications that comply with all codes and
ordinances). Accordingly, Count Twenty-Nine sufficiently alleges the scope of
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Brown’s duty of care, and Brown’s alleged breach of that duty, to state a cause of
action for professional negligence, and the Motion should be denied.
V. Count Thirty: Brown’s Argument that Design Professionals Cannot be
Found Liable for Violation of the Florida Building Code Under Florida
Statute 553.84 is Baseless.
Brown’s Motion argues that Count Thirty of the Crossclaim for Violation of
the Florida Building Code under Section 553.84, Florida Statutes, should be
dismissed because that section does not apply to design professionals. Motion, § III.
Brown cites no authority to support its argument. Brown claims that “numerous
Florida Circuit County [sic] Courts have recently held that design professionals
cannot be found liable for a violation of Fla. Stat. 553.84.” Motion, § III (citing to
court orders attached as Exhibit “A” to the Motion). None of those orders involve
design professionals. The orders attached as Exhibits A-C hold that a claim under
Section 553.84 cannot be brought against an inspector, whose only job was to inspect
projects for building code violations. See Motion, Exhibits A-C. The order attached
as Exhibit D gives no indication that it relates to either a design professional or a
Section 553.84 claim.
It is clear that architects are subject to, and can commit a violation of, the
Florida Building Code. See Fla. Stat. § 553.781(2)(a) ([u]pon a determination by a
local jurisdiction that a license under…chapter 481 [governing architects]…has
committed a material violation of the Florida Building Code…such local
jurisdiction shall impose a fine….”) (emphasis added). See also, Fla. Stat. §
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553.72(1) (express purpose of the Code is to create a “single set of documents that
apply to the design…of public or private buildings….”) (emphasis added); Fla. Stat.
§ 553.77(2) (directing the Florida Building Commission to develop a code
describing the responsibilities of the licensed design professional and residential
designer). Therefore, an architect who prepares plans that do not comply with the
building code, as alleged here, commits a violation of the Florida Building Code and
can be held liable under section 553.84. See Casa Clara Condo. Ass’n, Inc. v.
Charley Toppino & Sons, Inc., 558 So. 2d 631, 634 (Fla. 3d DCA 1991) (holding
that claim for violation of building codes can only be imposed on the person or party
who committed the violation).
Brown provided building plans to Royal Oak for the construction of
townhomes at the Project that were submitted to and approved by the building
official. Nonetheless, as alleged in the Crossclaim, Plaintiff alleges that Brown
violated the Florida Building Code by failing to draft those plans in sufficient detail.
See Crossclaim, ¶ 248. Accordingly, the Motion should be denied because Count
Thirty adequately states a claim against Brown under Section 553.84.
VI. Prejudgment Interest: Brown’s Motion to Strike Should be Denied
Because Royal Oak is Entitled to Prejudgment Interest on any Judgment
for Pecuniary Losses.
Brown argues that prejudgment interest is “only allowed on liquidated
damages” and are generally disallowed in “tort claims,” such that Royal Oak has
alleged no legal basis for entitlement to prejudgment interest. Motion, § IV. The
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Florida Supreme Court has clearly articulated Florida’s “Loss Theory” of
prejudgment interest, which holds that “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.” Argonaut Ins.
Co. v. May Plumbing Co., 474 So. 2d 212, 213 (Fla. 1985). A verdict has the effect
of liquidating damages as long as the verdict establishes the loss and the pertinent
date can be ascertained from the evidence. See Arizona Chemical Co., LLC v.
Mohawk Industries, Inc., 197 So. 3d 99 (Fla. 1st DCA 2016). “Florida has adopted
the position that prejudgment interest is merely another element of pecuniary
damages.” Argonaut, 474 So. 2d at 214. The “Loss Theory” applies to both tort and
contract actions, although prejudgment interest is not recoverable on awards for
speculative losses in personal injury claims. Id. at 214 n. 1. See also, Bosem v. Musa
Holdings, Inc., 46 So. 3d 42, 44-46 (Fla. 2010). Therefore, Royal Oak may seek
prejudgment interest as an element of its pecuniary damages, both contract and tort,
and Brown’s Motion to Strike should be denied.
VII. Conclusion.
For the foregoing reasons, Royal Oak respectfully requests that this Court
enter an order denying Brown’s Motion and requiring Brown to file a responsive
pleading to the Crossclaim.
Dated: May 9, 2023
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/s/ J. Michael Walls
Lannie D. Hough Jr.
Florida Bar No. 149470
James Michael Walls
Florida Bar No. 706272
Luis Prats
Florida Bar No. 329096
Robin H. Leavengood
Florida Bar No. 0547751
CARLTON FIELDS, P.A.
4221 W. Boy Scout Boulevard
Tampa, FL 33607-5780
Telephone: (813) 223-7000
Facsimile: (813) 229-4133
lhough@carltonfields.com
mwalls@carltonfields.com
lprats@carltonfields.com
rleavengood@carltonfields.com
anordman@carltonfields.com
slambe@carltonfields.com
nbonilla@carltonfields.com
krick@carltonfields.com
Attorneys for Defendant, Royal Oak Homes,
LLC
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on May 9, 2023, the foregoing was electronically
filed with the Clerk of the Court by using the E-filing Portal, which will
electronically serve this document to all registered counsel of record.
/s/ J. Michael Walls
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Preview
Filing # 172784143 E-Filed 05/09/2023 04:25:26 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA VILLAS AT EMERALD LAKE HOMEOWNERS ASSOCIATION, INC., a Florida not for profit corporation, Plaintiff, v. CASE NO.: 2020-CA-002942-ON ROYAL OAK HOMES, LLC, a Florida ROYAL OAK HOMES, LLC’S limited liability company, f/k/a AVH AMENDED RESPONSE IN ACQUISITION LLC; ADVANCED OPPOSITION TO BROWN + WRAPPING AND CONCRETE COMPANY SOLUTIONS OF CENTRAL FLORIDA, ARCHITECTURE, INC.’S INC., a Florida corporation; DON KING’S MOTION TO DISMISS CONCRETE, INC., a Florida corporation; COUNTS TWENTY-EIGHT, HUGH MACDONALD CONSTRUCTION, TWENTY-NINE, AND INC., a Florida corporation; IMPERIAL THIRTY OF ROYAL OAK BUILDING CORPORATION, a Florida HOMES, LLC’S SECOND corporation; PREMIER PLASTERING OF AMENDED CROSSCLAIM CENTRAL FLORIDA, INC. n/k/a TGK COMPLAINT AND MOTION STUCCO, INC., a Florida corporation; TO STRIKE CLAIMS FOR WEATHERMASTER BUILDING PREJUDGMENT INTEREST PRODUCTS, INC., a Florida corporation; [DKT. 751] WEINTRAUB INSPECTIONS & FORENSICS, INC. n/k/a WEINTRAUB ENGINEERING AND INSPECTIONS, INC., a Florida corporation; THE DIMILLO GROUP, LLC, a Florida limited liability company; WOLF’S IRRIGATION & LANDSCAPING, INC., a Florida corporation; SUMMERPARK HOMES, INC., a Florida corporation; BROWN + COMPANY ARCHITECTURE, INC., a Florida corporation; EXPERT PAINTING & PRESSURE WASHING, INC., a Florida corporation; 132626384.7 Defendants. / ROYAL OAK HOMES, LLC, f/k/a AVH ACQUISITION, Crossclaim Plaintiff, v. ADVANCED WRAPPING AND CONCRETE SOLUTIONS OF CENTRAL FLORIDA, INC., a Florida corporation; DON KING’S CONCRETE, INC., a Florida corporation; HUGH MACDONALD CONSTRUCTION, INC., a Florida corporation; IMPERIAL BUILDING CORPORATION, a Florida corporation; PREMIER PLASTERING OF CENTRAL FLORIDA, INC. n/k/a TGK STUCCO, INC., a Florida corporation; WEATHERMASTER BUILDING PRODUCTS, INC., a Florida corporation; WEINTRAUB INSPECTIONS & FORENSICS, INC. n/k/a WEINTRAUB ENGINEERING AND INSPECTIONS, INC., a Florida corporation; WOLF’S IRRIGATION & LANDSCAPING, INC., a Florida corporation; BROWN + COMPANY ARCHITECTURE, INC., a Florida corporation; EXPERT PAINTING & PRESSURE WASHING, INC., a Florida corporation; Crossclaim Defendants. / WEATHERMASTER BUILDING PRODUCTS, INC., a Florida Corporation; DON KING’S CONCRETE INC., a Florida Corporation, 2 132626384.7 Third-Party Plaintiff, v. ALL GLASS INSTALLATION COPRP., a Florida corporation; CASEY HAWKINS GLASS, INC., a Florida corporation; DEAN NESBIT, LLC, a Florida limited liability company; HELBERG ENGERPRISES, LLC, a Florida limited liability company; HOBBIT WINDOWS, LLC, a Florida limited liability company; T&M CONSTRUCTION OF SANFORD, INC., a Florida corporation; WELL DONE WINDOWS, INC., a Florida corporation; and WELL HUNG WINDOWS & DOORS, LLC, a Florida limited liability company; E.R.O. CONSTRUCTION, INC., a Florida Corporation; LIOS CONCRETE CORP., a Florida Corporation; and ATLANTIC CONCRETE SYSTEMS, INC., a Florida Corporation, Third-Party Defendants. / ROYAL OAK HOMES, LLC’S AMENDED RESPONSE IN OPPOSITION TO BROWN + COMPANY ARCHITECTURE, INC.’S MOTION TO DISMISS COUNTS TWENTY-EIGHT, TWENTY-NINE, AND THIRTY OF ROYAL OAK HOMES, LLC’S SECOND AMENDED CROSSCLAIM COMPLAINT AND MOTION TO STRIKE CLAIMS FOR PREJUDGMENT INTEREST In its Second Amended Complaint, Plaintiff alleges design and construction defects to a townhome development known as Villas at Emerald Lake Townhomes (the “Project”). Plaintiff sues Royal Oak Homes, LLC (“Royal Oak”) as the general contractor for the Project, and Royal Oak’s subcontractors who performed the 3 132626384.7 allegedly defective work. Plaintiff also sues Brown + Company Architecture, Inc. (“Brown”), the Project’s architect, and alleges that Brown’s design details in the Project plans violated the Florida Building Code and Brown’s standard of care as an architect. Second Amended Complaint, ¶¶ 50, 275, 284. Royal Oak filed an Answer and Defenses to the Second Amended Complaint and Second Amended Crossclaim Complaint [Dkt. 738] (the “Crossclaim”) against Brown and the subcontractors implicated by the design and construction defect allegations in Plaintiff’s Second Amended Complaint. Royal Oak sued Brown for breach of its contract to prepare the plans for the Project (Count Twenty-Eight), professional negligence (Count Twenty-Nine), and violation of Section 553.84, Florida Statutes (Count Thirty) as a result of the alleged design defects with the Plans. Brown moves to dismiss the Crossclaim, but Brown failed to comply with this Court’s Rule 5.3 requiring Brown to confer with Royal Oak’s counsel before filing any motion in a good faith effort to resolve the issues raised by Brown’s Motion. BCP 5.3. For this reason alone, Brown’s Motion to Dismiss should be denied. Brown moves to dismiss Royal Oak’s breach of contract claim claiming Royal Oak lacks standing to bring this claim because the Professional Services Agreement attached to the Crossclaim as Exhibit “J” (“PSA”) is between Brown and Royal Oak’s parent company, Avatar Properties Inc. (“Avatar”). Brown ignores Royal Oak’s allegation that Royal Oak is a wholly-owned subsidiary and agent of Avatar, 4 132626384.7 and as such, entitled to sue Brown for breach of the contractual obligations to defend and indemnify Royal Oak. The PSA attached to and incorporated in the Crossclaim makes that clear, providing that Brown shall defend and indemnify Avatar and “its agents.” PSA, ¶ 7. As a result, Royal Oak has standing to sue Brown for breach of contract just as alleged in the Crossclaim and provided in the attached PSA. Brown further moves to dismiss Royal Oak’s breach of contract claim, arguing that the indemnity provision in Brown’s PSA violates Section 725.06, Florida Statutes, because it contains no monetary limitation. The indemnification provision does not require Brown to indemnify Royal Oak for its own negligence, nor is Royal Oak suing for Brown to indemnify Royal Oak for its own negligence; thus, no monetary limitation is required by Section 725.06. For this additional reason, Brown’s motion to dismiss this claim should be denied. Brown moves to dismiss the professional negligence claim, arguing that Royal Oak did not allege Brown’s scope of work included providing specific details of the elements -- like windows -- found in townhomes for which Brown was retained to prepare plans for the Project. Royal Oak’s allegations that Brown was required to perform its architectural services under the PSA, including “signing and sealing – townhomes” plans for the Project, consistent with the skill and care of architects in Florida, more than meets the pleading requirements in Florida. For this reason, Brown’s motion to dismiss the professional negligence count should be denied. 5 132626384.7 Next, Brown moves to dismiss Royal Oak’s claim under Section 553.84, Florida Statutes, for violation of the building code, claiming that architects are not subject to liability under that section. Brown’s argument lacks any legal basis and should be denied. Architects are subject to, and can commit a violation of, the Florida Building Code, and hence, can be held liable under Section 553.84. Lastly, Brown’s motion to strike Royal Oak’s claims for prejudgment interest should be denied. The Florida Supreme Court has clearly held that prejudgment interest is proper on all awards for pecuniary damages, and Royal Oak is not seeking non-pecuniary relief. LEGAL STANDARD Pursuant to Florida Rule of Civil Procedure 1.110(b)(2), a pleading must contain “a short and plain statement of the ultimate facts showing that the pleader is entitled to relief.” In considering a motion to dismiss, the allegations in a complaint should be taken as true. Winter v. Miami Beach Healthcare Group, Ltd., 917 So. 2d 973, 974 (Fla. 3d DCA 2005). Applying this standard, Brown’s Motion should be denied. ARGUMENT I. Brown Violated the Good Faith Conference Requirement. Brown’s Motion should be denied for its failure to abide by Rule 5.3 of the Business Court Procedures (“BCP”) requiring a moving party to confer in good faith with counsel for the opposing party before filing any motion and to include a good 6 132626384.7 faith conference certification in the motion. See BCP 5.3. Brown did not attempt to confer with Royal Oak’s counsel before filing the Motion, and the Motion contains no good faith conference certification. Two days after filing the Motion, Brown’s counsel e-mailed Royal Oak’s counsel requesting a phone call to discuss the issues raised. Royal Oak questions whether Brown intended to confer in good faith, as the Motion resurrects arguments from prior motions that were previously resolved by good faith conferral and amendment. Because Brown’s Motion fails to comply with BCP 5.3, it should be denied on that basis alone. II. Count Twenty-Eight: Brown’s Motion to Dismiss the Breach of Contract Claim Based on Lack of Standing Should be Denied. Brown argues that Royal Oak’s breach of contract claim in Count Twenty- Eight of the Crossclaim should be dismissed for lack of standing. Brown argues that Royal Oak lacks standing to enforce the PSA, because its parent company, Avatar, was the contracting party with Brown. Motion, § I. Brown totally ignores Royal Oak’s allegation that “Royal Oak is a wholly-owned subsidiary and agent of Avatar Properties, Inc. and has standing to enforce the contract.” Crossclaim, ¶ 226 (emphasis added). The PSA expressly provides: [Brown] shall be solely responsible for and shall protect, defend, indemnify, save and hold harmless [Avatar], and its agents…harmless against any and all…claims…arising from or in connection with (a) [Brown’s] active negligence or willful misconduct; or (b) the breach of a statutory, regulatory or common law duty or obligation on the part of [Brown]. 7 132626384.7 PSA, ¶ 7 (emphasis added). Because the indemnification provision expresses a clear intent to benefit Avatar’s agents, Royal Oak has standing to sue to enforce the indemnification provision, even though not a party to the PSA. Mendez v. Hampton Ct. Nursing Ctr., LLC, 203 So. 3d 146, 148–49 (Fla. 2016) (explaining that the doctrine of third-party beneficiaries provides that under certain circumstances, a person may sue to enforce a contract, even though the person is not a party to the contract, such as where the clear or manifest intent of the contracting parties is that the contract directly benefit the third party); Dingle v. Dellinger, 134 So. 3d 484, 488 (Fla. 5th DCA 2014) (same). The two cases that Brown cites are inapposite here, having nothing to do with the standing of an agent to sue for breach of contract on its own behalf as the intended beneficiary of a principal’s contract. Motion, § I (citing Weiss v. Johansen, 898 So. 2d 1009, 1011 (Fla. 4th DCA 2005) (concerning standing in a fraud and breach of warranty action); Kumar Corp. v. Nopal Lines, Ltd., 462 So. 2d 1178, 1182 (Fla. 3d DCA 1985) (concerning standing of seller of goods to sue carrier for buyer’s losses as the buyer’s agent or subrogee)). Thus, the Motion should be denied as to Count Twenty-Eight as to lack of standing. III. Count Twenty-Eight: Brown’s Motion to Dismiss the Breach of Contract Claim Pursuant to Section 725.06(1), Florida Statutes, Should be Denied Because the Monetary Limitation Requirement of Section 725.06(1) is Inapplicable to the PSA. 8 132626384.7 Brown argues that the PSA’s indemnification provision is void and unenforceable under Section 725.06(1), Florida Statutes, because it does not contain a monetary limitation. Motion, § I. However, Section 725.06 voids only that “portion” of an indemnification provision in which an indemnitee seeks indemnity for its own negligence, unless the indemnification provision contains a monetary limit of the amount of indemnification. §725.06(1), Fla. Stats. (2020).1 Section 725.06(1) is inapplicable here because the indemnification provision does not require Brown to indemnify Royal Oak for its own negligence. It clearly provides that Brown shall indemnify Avatar or “its agents” for claims “arising from or in connection with (a) [Brown’s] active negligence or willful misconduct; or (b) the breach of a statutory, regulatory or common law duty or obligation on the part of [Brown].” PSA, ¶ 7 (emphasis added). As such, the Motion should be denied based on the plain language of Section 725.06(1), Florida Statutes. IV. Count Twenty-Nine: Brown’s Motion to Dismiss the Professional Negligence Claim Should be Denied Because Royal Oak Adequately Alleged the Duty and Breach Elements. In Count Twenty-Nine, Royal Oak alleges a cause of action for professional negligence against Brown. Crossclaim, ¶¶ 236-244. Brown’s Motion hinges on 1 Section 725.06, Florida Statutes, provides in relevant part that “[a]ny portion of any agreement … wherein any party … promises to indemnify … the other party … for damages … caused in whole or in part by any act, omission, or default of the indemnitee arising from the contract or its performance, shall be void and unenforceable unless the contract contains a monetary limitation on the extent of the limitation….” §725.06, Fla. Stats. (2020) (emphasis added). 9 132626384.7 whether or not the Crossclaim contains enough allegations of fact regarding the scope of Brown’s requested services for the Project. Motion, § II. Brown’s “requested services” are no mystery as the PSA is attached as an exhibit to the Crossclaim as Exhibit “J.” Harry Pepper & Assocs., Inc. v. Lasseter, 247 So. 2d 736, 736 (Fla. 3d DCA 1971) (“Any exhibit attached to a pleading shall be considered a part thereof for all purposes.”) (citing Rule 1.130(b), Fla. R. Civ. P.) The PSA plainly states that Brown will provide the consulting services which include “signing and sealing – townhomes,” “control drawings (townhomes),” and “Bid set creation.” Crossclaim, Exhibit “J” at Exhibit A. As the Counterclaim alleges, Plaintiff alleges Brown failed to ensure the plans were sufficiently detailed to meet Code requirements – including its failure to sufficiently detail the windows, waterproofing elements around the windows, and the exteriors of the buildings, resulting in roofing, waterproofing, building envelope, and site defects and deficiencies. Crossclaim, at ¶ 241; Second Amended Complaint, ¶¶ 50, 275, 284. Royal Oak alleges that, if Plaintiff is able to prove such allegations, they constitute a breach of Brown’s duty of care, causing damages to Royal Oak. Crossclaim, ¶¶ 242-244. See School Bd. of Broward County v. Pierce Goodwin Alexander & Linville, 137 So.3d 1059 (Fla. 4th DCA 2014) (holding that architects have a duty to prepare plans and specifications that comply with all codes and ordinances). Accordingly, Count Twenty-Nine sufficiently alleges the scope of 10 132626384.7 Brown’s duty of care, and Brown’s alleged breach of that duty, to state a cause of action for professional negligence, and the Motion should be denied. V. Count Thirty: Brown’s Argument that Design Professionals Cannot be Found Liable for Violation of the Florida Building Code Under Florida Statute 553.84 is Baseless. Brown’s Motion argues that Count Thirty of the Crossclaim for Violation of the Florida Building Code under Section 553.84, Florida Statutes, should be dismissed because that section does not apply to design professionals. Motion, § III. Brown cites no authority to support its argument. Brown claims that “numerous Florida Circuit County [sic] Courts have recently held that design professionals cannot be found liable for a violation of Fla. Stat. 553.84.” Motion, § III (citing to court orders attached as Exhibit “A” to the Motion). None of those orders involve design professionals. The orders attached as Exhibits A-C hold that a claim under Section 553.84 cannot be brought against an inspector, whose only job was to inspect projects for building code violations. See Motion, Exhibits A-C. The order attached as Exhibit D gives no indication that it relates to either a design professional or a Section 553.84 claim. It is clear that architects are subject to, and can commit a violation of, the Florida Building Code. See Fla. Stat. § 553.781(2)(a) ([u]pon a determination by a local jurisdiction that a license under…chapter 481 [governing architects]…has committed a material violation of the Florida Building Code…such local jurisdiction shall impose a fine….”) (emphasis added). See also, Fla. Stat. § 11 132626384.7 553.72(1) (express purpose of the Code is to create a “single set of documents that apply to the design…of public or private buildings….”) (emphasis added); Fla. Stat. § 553.77(2) (directing the Florida Building Commission to develop a code describing the responsibilities of the licensed design professional and residential designer). Therefore, an architect who prepares plans that do not comply with the building code, as alleged here, commits a violation of the Florida Building Code and can be held liable under section 553.84. See Casa Clara Condo. Ass’n, Inc. v. Charley Toppino & Sons, Inc., 558 So. 2d 631, 634 (Fla. 3d DCA 1991) (holding that claim for violation of building codes can only be imposed on the person or party who committed the violation). Brown provided building plans to Royal Oak for the construction of townhomes at the Project that were submitted to and approved by the building official. Nonetheless, as alleged in the Crossclaim, Plaintiff alleges that Brown violated the Florida Building Code by failing to draft those plans in sufficient detail. See Crossclaim, ¶ 248. Accordingly, the Motion should be denied because Count Thirty adequately states a claim against Brown under Section 553.84. VI. Prejudgment Interest: Brown’s Motion to Strike Should be Denied Because Royal Oak is Entitled to Prejudgment Interest on any Judgment for Pecuniary Losses. Brown argues that prejudgment interest is “only allowed on liquidated damages” and are generally disallowed in “tort claims,” such that Royal Oak has alleged no legal basis for entitlement to prejudgment interest. Motion, § IV. The 12 132626384.7 Florida Supreme Court has clearly articulated Florida’s “Loss Theory” of prejudgment interest, which holds that “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.” Argonaut Ins. Co. v. May Plumbing Co., 474 So. 2d 212, 213 (Fla. 1985). A verdict has the effect of liquidating damages as long as the verdict establishes the loss and the pertinent date can be ascertained from the evidence. See Arizona Chemical Co., LLC v. Mohawk Industries, Inc., 197 So. 3d 99 (Fla. 1st DCA 2016). “Florida has adopted the position that prejudgment interest is merely another element of pecuniary damages.” Argonaut, 474 So. 2d at 214. The “Loss Theory” applies to both tort and contract actions, although prejudgment interest is not recoverable on awards for speculative losses in personal injury claims. Id. at 214 n. 1. See also, Bosem v. Musa Holdings, Inc., 46 So. 3d 42, 44-46 (Fla. 2010). Therefore, Royal Oak may seek prejudgment interest as an element of its pecuniary damages, both contract and tort, and Brown’s Motion to Strike should be denied. VII. Conclusion. For the foregoing reasons, Royal Oak respectfully requests that this Court enter an order denying Brown’s Motion and requiring Brown to file a responsive pleading to the Crossclaim. Dated: May 9, 2023 13 132626384.7 /s/ J. Michael Walls Lannie D. Hough Jr. Florida Bar No. 149470 James Michael Walls Florida Bar No. 706272 Luis Prats Florida Bar No. 329096 Robin H. Leavengood Florida Bar No. 0547751 CARLTON FIELDS, P.A. 4221 W. Boy Scout Boulevard Tampa, FL 33607-5780 Telephone: (813) 223-7000 Facsimile: (813) 229-4133 lhough@carltonfields.com mwalls@carltonfields.com lprats@carltonfields.com rleavengood@carltonfields.com anordman@carltonfields.com slambe@carltonfields.com nbonilla@carltonfields.com krick@carltonfields.com Attorneys for Defendant, Royal Oak Homes, LLC CERTIFICATE OF SERVICE I HEREBY CERTIFY that on May 9, 2023, the foregoing was electronically filed with the Clerk of the Court by using the E-filing Portal, which will electronically serve this document to all registered counsel of record. /s/ J. Michael Walls 14 132626384.7