Answer: VILLAS AT EMERALD LAKE HOMEOWNERS ASSOCIATION INC vs. ROYAL OAK HOMES LLC

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                                Filing # 127204068 E-Filed 05/20/2021 12:49:41 PM



                          IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
                                 IN AND FOR OSCEOLA COUNTY, FLORIDA
                                             CIVIL DIVISION

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

                 Plaintiff,
                                                                                                    Case No.: 2020-CA-002942
        Vv.


        ROYAL OAK HOMES, LLC, a Florida limited
                                                                                              CROSSCLAIM    DEFENDANT
        liability company; ADVANCED WRAPPING AND
                                                                                              WEINTRAUB’S ANSWER AND
        CONCRETE          SOLUTIONS  OF   CENTRAL
                                                                                              DEFENSES   TO   AMENDED
        FLORIDA, INC., a Florida corporation; DON
                                                                                              CROSSCLAIM
        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;
        EXPERT PAINTING & PRESSURE                                    WASHING,
        INC., a Florida corporation;

                 Defendants.
                                                                                          /

        WEATHERMASTER            BUILDING                        PRODUCTS,
        INC., a Florida Corporation;

                 Third-Party Plaintiff,

        Vv.


        ALL     GLASS     INSTALLATION                   CORP.,          a Florida
        corporation,    CASEY         HAWKINS               GLASS,            INC.,   a
Florida corporation; DEAN NESBIT, LLC, a Florida
limited      liability   company;    HELBERG
ENTERPRISES, 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;

        Third-Party Defendants.
                                                         /

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

        Crossclaim Plaintiff,

Vv.


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.
                                                             /

                     CROSSCLAIM DEFENDANT WEINTRAUB’S
                ANSWER AND DEFENSES TO AMENDED CROSSCLAIM
Defendant / Crossclaim Defendant, WEINTRAUB           INSPECTIONS & FORENSIC, INC.,

n/k/a WEINTRAUB ENGINEERING AND INSPECTIONS, INC. (“Weintraub”), by and through

its undersigned counsel, hereby files its answer and defenses to Defendant / Crossclaim Plaintiff,

ROYAL OAK HOMES, LLC’s (“Royal Oak”), Amended Crossclaim, and states as follows:

                          ANSWER TO AMENDED             CROSSCLAIM

                                      Jurisdiction and Venue

               Admitted for jurisdictional purposes only; otherwise denied.

       2       The Amended Complaint speaks for itself; otherwise denied.

       3       The   Amended    Complaint    and   Amended     Crossclaim   speak   for   themselves: :3

otherwise denied.

       4       Admitted for jurisdictional and venue purposes only; otherwise denied.

                                              Parties

               Without knowledge, therefore denied.

               Without knowledge, therefore denied.

               Without knowledge, therefore denied.

               Without knowledge, therefore denied.

               Without knowledge, therefore denied.

       10.     Without knowledge, therefore denied.

       11      Without knowledge, therefore denied.

       12      Without knowledge, therefore denied.

       13      Admitted that Weintraub is a Florida corporation with its principal place of business

in Sun City Center, Florida, is authorized to do business in Florida, and was hired by Royal Oak

to perform a limited scope of non-compulsory inspections for some of the townhome units at the

Subject Property; otherwise denied.
14.       Without knowledge, therefore denied.

                                                General Allegation:

          15.       Royal Oak’s response to the Amended               Complaint    speaks for itself; otherwise

denied.

          16.       Admitted that Weintraub and Royal Oak entered into a Vendor / Sub-Contractor

Master Agreement dated April 18, 2014, which speaks for itself; otherwise denied.

          17.       Admitted     that   on   or about   September   2,   2020,    counsel   for   Royal   Oak   sent

Weintraub written correspondence that speaks for itself; otherwise denied.

          18.       Denied.

                                                   Counts 1~22

          These counts, including the allegations made in paragraphs 19 through 186, are not directed

to Weintraub and therefore do not require a response from Weintraub.                    To the extent any of the

allegations contained in these counts are directed to Weintraub, such allegations are denied.

                              Count 23 — Breach of Contract Against Weintraub

          187.      Weintraub incorporates its responses to paragraphs 1 through 18 above as if fully

set forth herein.

          188.      Admitted that Weintraub and Royal Oak entered into a Vendor / Sub-Contractor

Master Agreement dated April 18, 2014, which speaks for itself, and that Exhibit H attached to the

Counterclaim appears to be a copy of the Vendor / Sub-Contractor Master Agreement; otherwise

denied.

          189.      The contract speaks for itself; otherwise denied.

          190.      Plaintiff's Amended Complaint speaks for itself; otherwise denied.

          191       Denied.

          192       Denied.
193.        Admitted that on or about September 2, 2020,       counsel for Royal Oak       sent

Weintraub written correspondence that speaks for itself; otherwise denied.

        194,        Denied.

        195.        Denied.

        196.        Denied.

        197,        Denied.

                               Count 24 — Negligence Against Weintraub

        198.        Weintraub incorporates its responses to paragraphs 1 through 18 above as if fully

set forth herein.

        199,        Denied.

        200.        Denied.

        201.        Denied.

 Count 25 — Statutory Cause of Action Pursuant to § 553.84, Fla. Stat. Against Weintraub

        This count, including the allegations made in paragraphs 202 through 209, is the subject of

Weintraub’s Motion to Dismiss Count 25 of Amended Crossclaim, filed contemporaneously

herewith,   and therefore     does   not require a response   from Weintraub   at this time.    Should

Weintraub’s Motion to Dismiss be denied, Weintraub specifically reserves the right to file an

answer to Count 25, assert defenses, and file relevant counterclaims or crossclaims, if any.

                                             Counts 26 — 31

        These counts, including the allegations made in paragraphs 210 through 260, are not

directed to Weintraub and therefore do not require a response from Weintraub. To the extent any

of the allegations contained in these counts are directed to Weintraub, such allegations are denied.

        ANY    AND       ALL OTHER      ALLEGATIONS      NOT EXPRESSLY         ADMITTED        HEREIN

ARE DENIED.
DEFENSES

                                             First Defense

        Royal Oak retained Weintraub to perform limited, non-compulsory             inspections at the

Subject Property.    Weintraub only inspected the building components Royal Oak directed it to

inspect, and Weintraub owed no duty or obligation to any party to inspect any other building

components.    The proper installation of the Subject Property’s exterior stucco, building envelope

system, and other building components were the responsibility of Royal Oak and others, not

Weintraub.

                                            Second Defense

        Royal Oak’s claims are barred, in whole or in part, by the applicable statute of limitations

and statute of repose.

                                            Third Defense

        The damages alleged by Royal Oak were solely or partially caused by the negligence or

breaches of other parties, entities, or non-parties, including Royal Oak and the entities that actually

performed the work, over whom Weintraub had no control and for whose control Weintraub is not

responsible.   Therefore, liability should be apportioned among the parties known or any party yet

to be disclosed through discovery pursuant to § 768.81, Florida Statutes, and Fabre v. Marin, 623

So. 2d 1189 (Fla. 1993).      Weintraub currently identifies Royal Oak and its design professionals,

subcontractors, and suppliers, as responsible parties.   Weintraub reserves the right to amend this

defense prior to trial if any other responsible parties or non-parties are identified through

investigation or discovery.

                                            Fourth Defense

        Royal Oak has failed to mitigate damages and is not entitled to the damages that could have

been mitigated.
Fifth Defense

        To the extent Weintraub      is found to have complied with the express and applicable

provisions of the agreement between       Weintraub    and Royal Oak     and properly performed      its

inspections in reliance on the design documents, Royal Oak’s claims are barred by the doctrine

espoused under United States v. Spearin, 248 U.S. 132 (1918) and its progeny.

                                            Sixth Defense

        Weintraub is entitled to a setoff of any recovery against it to the extent of the value of all

benefits, settlement, or judgments paid or payable to Royal Oak. See Grobman v. Posey, 863 So.2d

1230, 1237 (Fla. 4th DCA 2003).

                                          Seventh Defense

        Royal Oak’s claims are barred because the alleged defects were patent and obvious to

Plaintiff and/or Royal Oak or others under its agency or control.

                                           Eighth Defens

        Weintraub adopts and incorporates by reference the defenses raised by Royal Oak in its

Answer and Defenses to Plaintiff's Amended Complaint. Royal Oak alleges that the claims raised

in its Amended Crossclaim are derivative of the claims raised in Plaintiff's Amended Complaint.

If that is true and Royal Oak prevails on its defenses to Plaintiff’s claims, Royal Oak is not entitled

to recover damages from Weintraub.

                                           Ninth Defense

        Royal Oak’s claims are barred to the extent that the damages sought are speculative,

remote, contingent, uncertain, and/or not reasonably ascertainable.
Tenth Defense

       Royal Oak’s claims are barred because, to the extent any of the alleged deficiencies actually

exist at the Subject Property, Weintraub notified Royal Oak of the existence of such deficiencies

through the inspection reports Weintraub provided to Royal Oak.

                                        Eleventh Defense

       To the extent that the Vendor / Sub-Contractor Master Agreement attached to the Amended

Crossclaim as Exhibit H is found to form the agreement between Weintraub and Royal Oak, any

purported contractual indemnification provision in the agreement is void and unenforceable

because it fails to comply with Section 725.06, Florida Statutes.

                                         Twelfth Defense

       Weintraub’s inspections were performed in accordance with the standard of care used by

similar professionals in the community under similar circumstances.

                                       Thirteenth Defense

       The damages alleged in the Amended Crossclaim resulted from improper maintenance and

not by improper acts and omissions by Weintraub.

                                       Fourteenth Defense

       The Subject Property sustained damages from various hurricanes and named storms, and

such damages were caused by an Act of God over which Weintraub had no control and for which

Weintraub is not responsible.

                                        Fifteenth Defense

       Royal Oak’s claim against Weintraub for negligence is barred by the economic loss rule

because the only damages Royal Oak has alleged are to the Subject Property itself, Royal Oak has

not alleged any personal injury or damage to other property, and Royal Oak’s alleged damages are

purely economic.
GENERAL RESPONSE AND RESERVATION

       Weintraub has not knowingly waived any applicable defenses and reserves the right to

assert and rely on such other applicable defenses as may become available or apparent during

discovery proceedings.   Weintraub reserves the right to amend its answer or defenses or to delete

defenses that Weintraub determines to be inapplicable during the course of subsequent discovery.

Weintraub does not assume the burden of proof of the defenses listed above in circumstances in

which the applicable law provides otherwise.

       WHEREFORE,        Defendant / Crossclaim Defendant, Weintraub Inspections & Forensics,

Inc. n/k/a Weintraub Engineering and Inspections, Inc., respectfully requests that this Court enter

a final judgment in its favor including an award of Weintraub’s reasonable attorneys’ fees and

costs, that Defendant / Crossclaim Plaintiff, Royal Oak Homes, LLC, take nothing from this action,

and that this Court grant to Weintraub all relief deemed just and proper.


                                                      /s/ Andrew I. Holway
                                                      Timothy C. Ford
                                                      Florida Bar No. 173770
                                                      Andrew E. Holway
                                                      Florida Bar No. 098559
                                                      Hill Ward Henderson
                                                      101 E. Kennedy Blvd., Suite 3700
                                                      Tampa, Florida 33602
                                                      Telephone: 813-221-3900
                                                      Email: Dore
                                                             tim.ford@hwhlaw.com
                                                                     com
                                                      Email:   andrew.holway@hwhlaw.com
                                                      Secondary: tracy.coale@hwhlaw.com
                                                      kathy. wernsing@hwhlaw.com
                                                      derrick.calandra@hwhlaw.com
                                                      Attorneys for Weintraub Inspections &
                                                      Forensic, Inc.
CERTIFICATE OF SERVICE

         I certify that a true and correct copy of the foregoing has been electronically served through

the Florida Courts E-Filing Portal to all parties and/or counsel of record on May 20, 2021.

                                                        /s/ Andrew E. Holway
                                                        Attorney




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