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

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                                Filing # 127063231 E-Filed 05/18/2021 04:59:09 PM



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

         VILLAS AT EMERALD LAKE
         HOMEOWNERS ASSOCIATION, INC.,
         a Florida not for profit corporation,               Case No.: 2020-CA-2942-ON

               Plaintiff,

         Vv.


         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
         IRRIGATIONS & LANDSCAPING, INC., a
         Florida corporation;
         SUMMERPARK HOMES, INC., a Florida
         corporation; BROWN+COMPANY
         ARCHITECTURE,        INC., a Florida corporation;

               Defendants,
CROSS-DEFENDANT, IMPERIAL BUILDING CORPORATION’S
 ANSWER AND AFFIRMATIVE DEFENSES TO ROYAL OAK HOMES, LLC’S
                    AMENDED CROSSCLAIM

       COMES NOW, Defendant, IMPERIAL BUILDING CORPORATION

(“IMPERIAL”), and submits its Answer and Affirmative Defenses to the Amended

Crossclaim, and alleges:

       1      Admitted for jurisdictional purposes only. Otherwise denied.

       2.     As to IMPERIAL, denied.    As to all other parties, without knowledge and

therefore denied.

       3      As to IMPERIAL, denied.    As to all other parties, without knowledge and

therefore denied.

       4      As to IMPERIAL, denied as phrased.    As to all other parties, without

knowledge and therefore denied.

       5      Without knowledge and therefore denied.

       6      Without knowledge and therefore denied.

              Without knowledge and therefore denied.

              Without knowledge and therefore denied.

              Denied as phrased.

       10.    Without knowledge and therefore denied.

       11     Without knowledge and therefore denied.

       12     Without knowledge and therefore denied.

       13     Without knowledge and therefore denied.

       14.    Without knowledge and therefore denied.
15.    As to IMPERIAL, denied.       As to all other parties, without knowledge and

therefore denied.

       16.    As to IMPERIAL, denied.       As to all other parties, without knowledge and

therefore denied.

       17.    As to IMPERIAL, denied.       As to all other parties, without knowledge and

therefore denied.

       18.    Denied.

                                Count One — Count Thirteen

       19-117           These counts and these paragraphs do not pertain to this Defendant

and therefore no response is required.    Should a response be required, denied.

                                       Count Fourteen
                                     Breach of Contract
                                         (IMPERIAL)
       118.   IMPERIAL re-alleges and incorporates by reference its responses to

paragraphs | — 18 of the Amended Crossclaim as if fully set forth herein.

       119.   It is admitted that an agreement between Imperial and Royal Oak is

attached as an exhibit to the Amended Crossclaim.      Otherwise denied.

       120.   Denied as phrased.

       121    Denied.

       122.   Denied.

       123    Denied.

       124    Denied.

       125    Denied.
126.   Denied.

        127.   Denied.

        128.   Denied.

       WHEREFORE, Cross-Defendant, IMPERIAL BUILDING CORPORATION

requests the entry of judgment in its favor, that the Cross-Plaintiff take nothing by virtue

of its Amended Crossclaim, that the Court allow IMPERIAL        BUILDING

CORPORATION to go without delay, and to award its reasonable costs incurred in

connection with this action, and for such other and further relief as the Court deems to be

just and proper.

                                       Count Fifteen
                                         Negligenc
                                       (IMPERIAL)
        129.   IMPERIAL re-alleges and incorporates by reference its responses to

paragraphs 1 — 18 of the Amended Crossclaim as if fully set forth herein

        130.   Denied as phrased.

        131.   Denied.

        132.   Denied.

       WHEREFORE, Cross-Defendant, IMPERIAL BUILDING CORPORATION

requests the entry of judgment in its favor, that the Cross-Plaintiff take nothing by virtue

of its Amended Crossclaim, that the Court allow IMPERIAL        BUILDING

CORPORATION to go without delay, and to award its reasonable costs incurred in

connection with this action, and for such other and further relief as the Court deems to be

just and proper.
Count Sixteen
                   Statutory Cause of Action Pursuant to § 553.84, Fla. Stat.
                                         (IMPERIAL)

        133.   IMPERIAL re-alleges and incorporates by reference its responses to

paragraphs | — 18 of the Amended Crossclaim as if fully set forth herein

        134.   Denied.

        135.   Denied as phrased.

        136.   Denied.

        137.   Denied.

        138.   Denied.

        139.   Denied.

        140.   Denied.

       WHEREFORE, Cross-Defendant, IMPERIAL BUILDING CORPORATION

requests the entry of judgment in its favor, that the Cross-Plaintiff take nothing by virtue

of its Amended Crossclaim, that the Court allow IMPERIAL         BUILDING

CORPORATION to go without delay, and to award its reasonable costs incurred in

connection with this action, and for such other and further relief as the Court deems to be

just and proper.

                            Counts Seventeen — Count Thirty-One

        141 - 260        These paragraphs and these counts do not pertain to this Defendant

and therefore no response is required. Should a response be required, denied.
JURY TRIAL DEMAND

           IMPERIAL BUILDING CORPORATION demands a jury trial on all issues so

triable.

                               AFFIRMATIVE DEFENSES

           1    To the extent that Cross-Plaintiff seeks indemnification against

IMPERIAL, the relevant provision of the parties’ written agreement fails to contain

language capping IMPERIAL’s indemnification liability, and is therefore invalid and

unenforceable under § 725.06, Fla. Stat.

           2.   The Amended Crossclaim fails to state a cause of action against

IMPERIAL for negligence as it does not allege the existence or breach of any

extracontractual duty, and also because the alleged damages are for indemnity rather than

damages properly cognizable in a negligence claim.

           3    The Amended Crossclaim fails to allege a sufficient cause of action against

IMPERIAL under § 553.84, Fla. Stat., because it does not allege all the elements

necessary to have a civil cause of action under that statute, including a showing that the

plans were not properly permitted by local authorities or that the subject project failed

any inspections by local authorities.

           4    The Amended Crossclaim also fails to allege a sufficient cause of action

against IMPERIAL under § 553.84, F/a. Stat., because the damages Cross-Plaintiff seeks

are for indemnification, rather than damages arising out of any properly alleged building

code violation by IMPERIAL.       To the extent Cross-Plaintiff seeks contractual damages in

Count Twelve, it has also failed to state a cause of action.
5   Cross-Plaintiff’s claims against IMPERIAL under § 553.84, Fla. Stat. are

also legally insufficient because 1) the required building permits were obtained;     2) the

local government or public agency with authority to enforce the Florida Building Code

approved the plans;   3) the construction passed all required inspections under the code;

4) there is no personal injury or damage to property other than the property that is the

subject of the permits, plans and inspections; and 5) IMPERIAL did not know and

should not have known that any violation of the building code existed.

          6   Some or all of the claims against IMPERIAL are barred by the applicable

statute of limitations or statute of repose, or alternatively, by the equitable doctrine of

laches.

          7   Upon information and belief, Plaintiff or Cross-Plaintiff failed to satisfy

one or more conditions precedent to recovering against IMPERIAL by failing to provide

IMPERIAL with reasonable pre-suit notice of any actual or threatened claim arising out

of the project described in the underlying Complaint.

          8   Upon information and belief, some or all of the damages alleged against

IMPERIAL resulted from force majeure / weather-related events, including hurricanes,

tornadoes, and tropical storms, and not as a result of any alleged negligence, breach, or

code violation by IMPERIAL.

          9   Under §§ 768.31 and 768.81, F/a. Stat., and the doctrine established in

Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993), judgment should be entered against each

party or person liable on the basis of such party’s or person’s percentage of fault and not

on the basis of joint and several liability, including the Association, Cross-Plaintiff, and
all other Defendants identified in this action; and IMPERIAL is not responsible for other

contractors’ or subcontractors’ work, including negligently performed work on the

project, and/or breached warranties, or any other aspect of work performed by others on

the property.

        10.     IMPERIAL is entitled to a set-off to the extent of all monies received by or

on behalf of, or payable to, or on behalf of the Plaintiff or Cross-Plaintiff from any

collateral source.

        11.     IMPERIAL is entitled to a set-off to the extent of all monies received by or

on behalf of, or payable to, or on behalf of the Plaintiff or Cross-Plaintiff from the

proceeds of any settlements, recoveries or recoupments or setoffs paid or received due to

this lawsuit or one or more of the alleged construction defects at issue in this case.

        12.     IMPERIAL is also entitled to a set-off for any alleged remediation that has

or will result in the betterment to the subject property(ies) beyond what was called for in

the applicable plans and specifications.

        13.     To the extent that IMPERIAL performed work on the subject property and

third parties subsequently modified, damaged, or disturbed that work, IMPERIAL is not

liable for any resulting damages.

        14.     Upon information and belief, some or all of the damages alleged against

IMPERIAL were caused, in whole or in part, by a lack of maintenance by Cross-Plaintiff,

and/or the Association and/or its members or predecessors.

        15.     Some or all of the damages sought from IMPERIAL resulted from a failure

on the part of Cross-Plaintiff, the Association, its members, or its predecessors to mitigate
its alleged damages by properly maintaining the subject property and funding reserve and

operating accounts, and failing to timely and properly repair the damages attributed to

and sought from IMPERIAL in the Amended Crossclaim.

       16.     To the extent that any alleged defects were included in IMPERIAL’s scope

of work, which is denied, said defects resulted from the actions or inactions of others

during construction, or from those of the project’s architect(s) and/or engineers,   and not

from any action or omission on the part of IMPERIAL.

       17.     Upon information and belief, some or all of the claims involving

IMPERIAL’s scope of work are barred by the doctrines of waiver and estoppel in that

Cross-Plaintiff, the Association, its members or its predecessors failed to timely notify

IMPERIAL of any such claims or alleged defects but instead retained other parties to

make repairs; or alternatively, Plaintiff or its members or predecessors knowingly

permitted the subject property(ies) to go unrepaired for an unreasonable period of time

after becoming aware of the alleged defects.

       18.     All claims against CROWN     are barred or diminished by the Economic

Waste Doctrine as set forth in Grossman Holdings, Ltd. v. Hourihan, 414 So. 2d 1037

(Fla. 1982).
CERTIFICATE OF SERVICE

       I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished this 18" day of May, 2021 via electronic mail to:


  Phillip E. Joseph, Esquire                    Lannie D. Hough Jr., Esquire
  Evan J. Small, Esquire                        Robin H. Leavengood, Esquire
  Jeffrey A. Widelitz, Esquire                  Carlton Fields, P.A.
  Nicholas B. Vargo, Esquire                    4221 W. Boy Scout Boulevard
  Ball Janik, LLP                               Tampa, FL 33607-5780
  201 E. Pine Street, Suite 600                 lhough@carltonfields.com
  Orlando, FL 32801                             nbonilla@carltonfields.com
 pjoseph@balljanik.com                          rleavengood@carltonfields.com
 esmall@balljanik.com                           brosa@carltonfields.com
 jwidelitz@balljanik.com                        vwilliams@carltonfields.com
 nvargo@balljanik.com                           Counsel for Royal Oak Homes, LLC
 ypalmer@balljanik.com
 mwise@balljanik.com
 orlandodocket@balljanik.com
 Counsel for Plaintiff, Villas at Emerald
 Lake Homeowners Association, Inc.



                                            Si Thamir A.R.         Kaddoure, Ir.
                                            THAMIR A.R. KADDOURIL, JR.
                                            Florida Bar No.: 0186600
                                            PENELOPE T. ROWLETT
                                            Florida Bar No.: 0120979
                                            BETH ANN TOBEY
                                            Florida Bar No.: 1008538
                                            LAW OFFICE OF THAMIR A. R.
                                            KADDOURIL, JR., P.A.
                                            3220 West Cypress Street
                                            Tampa, Florida 33607
                                            (813) 879-5752 Tel; (813) 879-5707 Facsimile
                                            THAMIR.KADDOURI@TAMPALAW.ORG;
                                            SERVICE@TAMPALAW.ORG;
                                            Counsel for Defendant, Imperial Building
                                            Corporation




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