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                                Filing # 127146614 E-Filed 05/19/2021 04:17:16 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,
                                                                                    Case No.: 2020-CA-002942
         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.

         ROYAL OAKS HOME, LLC,

                  Cross-Claimant,

         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.;
WOLF’S IRRIGATION & LANDSCAPING, INC., a
Florida      corporation;   BROWN+COMPANY
ARCHITECTURE, INC., a Florida corporation;

        Cross-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; DEN 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.
                                                                      /
DON     KING’S      CONCRETE,             INC.,     a       Florida
corporation;

        Third-Party Plaintiff,

Vv

E.R.O.     CONSTRUCITON,    INC.,  a  Florida
corporation; LIOS CONCRETE CORP., a Florida
corporation;    and  ATLANTIC     CONCRETE
SYSTEMS,      INC., a Florida corporation,
Third-Party Defendants.
                                                          /

                    DON KING’S CONCRETE, INC.’S ANSWER AND
                 AFFIRMATIVE DEFENSES TO PLAINTIFF’S AMENDED
                         COMPLAINT WITH JURY DEMAND

      COMES       NOW,     Defendant/Cross-Defendant/Third-Party           Plaintiff,   DON   KING’S

CONCRETE,       INC. (“DON    KING’S’),      by and through its undersigned counsel, files its

Answer and Affirmative Defenses to Plaintiff's Amended            Complaint, as follows:

                                    NATURE OF THE CASE
      1
               Defendant     DON    KING’S    denies    it is liable for any   damages     or alleged

defects at the Subject Property.

                                   JURISDICTION AND VENUE

               Admitted for jurisdictional purposes only.

               Admitted.

               Without knowledge,     therefore denied.

               Without knowledge, therefore denied

               Without knowledge,     therefore denied

               Without knowledge, therefore denied

               Without knowledge,     therefore denied

                                              PARTIES

               Without knowledge,     therefore denied

      10       Without knowledge, therefore denied

      11       Without knowledge,     therefore denied

      12       Without knowledge, therefore denied
13   Without knowledge,   therefore denied

14   Without knowledge, therefore denied

15   Without knowledge,   therefore denied

16   Without knowledge, therefore denied

17   Without knowledge,   therefore denied

18   Without knowledge, therefore denied

19   Without knowledge,   therefore denied

20   Admitted for jurisdictional purposes.

21   Denied as phrased.

22   Without knowledge, therefore denied

23   Without knowledge,   therefore denied

24   Without knowledge, therefore denied

25   Without knowledge, therefore denied

26   Without knowledge,   therefore denied

27   Without knowledge, therefore denied

28   Without knowledge,   therefore denied

29   Without knowledge, therefore denied

30   Without knowledge,   therefore denied

31   Without knowledge, therefore denied

32   Without knowledge,   therefore denied

33   Without knowledge, therefore denied

34   Without knowledge,   therefore denied

35   Without knowledge, therefore denied
36   Without knowledge,   therefore denied

37   Without knowledge, therefore denied

38   Denied as phrased.

39   Without knowledge, therefore denied

40   Denied as to Don King’s.

          FACTS COMMON          TO ALL CLAIMS FOR RELIEF

41   Without knowledge,   therefore denied.

42   Without knowledge, therefore denied.

43   Without knowledge,   therefore denied

44   Without knowledge, therefore denied

45   Without knowledge,   therefore denied

46   Without knowledge, therefore denied

47   Without knowledge, therefore denied

48   Without knowledge,   therefore denied

49   Without knowledge, therefore denied

50   Without knowledge,   therefore denied

51   Denied.

52   Without knowledge,   therefore denied

53   Without knowledge, therefore denied

54   Denied.

55   Without knowledge, therefore denied

56   Without knowledge,   therefore denied

57   Without knowledge, therefore denied
58      Without knowledge,   therefore denied

         59      Without knowledge, therefore denied

         60      Without knowledge,   therefore denied

         61      Without knowledge, therefore denied

         62      Denied

         63      Denied

         64      Denied

         65      Denied

         66      Denied

         67      Denied

                                         COUNTS | - XI

         68-148. The allegations within Count | through Count XI are not asserted against

DON KING'S, and, therefore, DON KING’S does not respond to said allegations.             To the

extent   that this Court   deems   a response    from    DON   KING’S   is necessary   to these

allegations, they are denied.

                COUNT XII — VIOLATION OF THE FLORIDA BUILDING CODE
                                  (against DON KING)

         149.    DON KING'S readopts and realleges its responses to Paragraphs 1 through

67 as if fully set forth herein.

         150.    Denied as phrased.

         151     Denied.

         152     Denied.

         153     Denied.

         154     Without knowledge,   therefore denied
155.   Denied.

       156.   Denied.

       157.   Denied.

                                 COUNT Xill - NEGLIGENCE
                                    (against DON KING)

       158.   DON KING'S readopts and realleges its responses to Paragraphs 1 through

67 and 149 through 157 as if fully set forth herein.

       159.   Denied as phrased.

       160    Denied

       161    Denied

       162    Denied

       163    Denied

                                    COUNTS XIV - XXIX

       164-285. The allegations within Count XIV through Count XXIX are not asserted

against DON KING'S, and, therefore, DON KING’S does not respond to said allegations.

To the extent that this Court deems a response from DON     KING’S is necessary to these

allegations, they are denied.

                                  AFFIRMATIVE DEFENSES

                                FIRST AFFIRMATIVE DEFENSE

       That at the time and place complained of, Plaintiff was guilty of negligence which

was the legal cause of or contributed to the incident complained of and to the extent of

such negligence,   Plaintiff is barred and estopped from any recovery in this cause or, in

the alternative, any recovery had must be reduced in accordance with the principles of

comparative negligence and fault must be apportioned between       Plaintiff, and the other
Defendants and any Fabre Defendants.




                            SECOND AFFIRMATIVE DEFENSE

       Plaintiff has failed to mitigate their personal and property damages and to the

extent they have so failed to mitigate, they are barred and estopped from recovery against

Defendant, DON KING'S.

                              THIRD AFFIRMATIVE DEFENSE

       Defendant, DON KING'S, is entitled to a set-off to the extent of all monies received

or payable to Plaintiff from any collateral source, including the value of any settlement

entered into by any party to this litigation.

                            FOURTH AFFIRMATIVE DEFENSE

       Defendant, DON KING'S, was not guilty of any negligence and the alleged incident

occurred through the negligent acts and/or omissions of others and Plaintiff. To the extent

that any apportionment of liability or damages is necessary, however, Defendant, DON

KING'S affirmatively alleges the provisions of Fla. Stat. § 768.81       and interpreting case

law.

                              FIFTH AFFIRMATIVE DEFENSE

       The damages alleged by Plaintiff were caused by parties who were not acting

under the authority or right of control of Defendant, DON      KING’S.   To the extent that any

apportionment of liability or damages is necessary, however, Defendant, DON                KING’S

affirmatively allege the provisions of Fla. Stat.    § 768.81 and interpreting case law.

                              SIXTH AFFIRMATIVE DEFENSE

       Plaintiff's damages, if any, were caused by an unforeseeable, superseding and/or

intervening act over which Defendant, DON           KING’S, had no control and for which they
are not liable.




                                SEVENTH AFFIRMATIVE DEFENSE

        Defendant, DON KING’S, performed their work in accordance with the applicable

plans, specifications and drawings.

                                 EIGHTH AFFIRMATIVE DEFENSE

       The work performed by Defendant, DON                KING'S, was inspected and accepted by

others, inspected and approved by the appropriate governmental agencies.

                                  NINTH AFFIRMATIVE DEFENSE

       Any work performed by Defendant, DON KING’S, complied with industry standards

applicable to such work in the jurisdiction at the time.

                                 TENTH AFFIRMATIVE DEFENSE

        Plaintiff's claims are barred based on spoliation of evidence, to the extent the

property was repaired and/or remediated              and crucial evidence was destroyed, without

providing DON KING’S with an opportunity to inspect.

                               ELEVENTH AFFIRMATIVE DEFENSE

        Plaintiff's   claims    are   barred   as   Plaintiff failed   to comply    with   the   statutory

requirements of Chapter 558 of the Florida Statutes.

                                TWELFTH AFFIRMATIVE DEFENSE

        Plaintiff's damages       are limited by the economic          waste   doctrine,   laches   and/or

estoppel.

                               THIRTEENTH AFFIRMATIVE DEFENSE

        Defendant, DON KING'S, asserts that to the extent DON KING’S’ work is found to
have    been   previously   inspected,   approved,      accepted   and   paid for by the contractor,

owner and/or agents, Plaintiff's claims are limited by the Slavin Doctrine. Slavin v. Kay,

108 So.2d 462 (Fla. 1959).

                            FOURTEENTH AFFIRMATIVE DEFENSE

        Plaintiff's claims are banned to the extent of any applicable contract or warranty

language at issue.

                             FIFTEENTH AFFIRMATIVE DEFENSE

        Any work performed by Defendant, DON KING’S, complied with the building code

in effect for the jurisdiction at the time.

                            SIXTEENTH AFFIRMATIVE DEFENSE

        DON    KING’S   affirmatively alleges that it is not responsible for any damages           or

defects caused     by neglect, improper or insufficient maintenance, wear and tear, age,

exposure, or deterioration. Recovery, if any, should be barred or reduced in portion to

same.


                              SEVENTEENTH AFFIRMATIVE DEFENSE

        The damages claimed by Plaintiff shall be reduced for any betterment.            Betterment

includes without limitation repairing the alleged defective work of DON                 KING’S   with

materials that are superior in quality to the materials originally installed by DON         KING’S;

utilizing labor techniques, means, or methods, that are superior to the labor techniques,

means    or methods     utilized by DON       KING’S,    the cost of warranties superior to those

offered, if any, by DON KING’S; and the failure to account for the life expectancy of the

materials originally installed, if any, by DON       KING’S.

        Defendant, DON KING'S, reserves the right to raise additional affirmative defenses



                                                   10
as they become       known during the pendency of litigation, as the discovery process and

pre-trial preparations are ongoing.

         WHEREFORE,        Defendant DON KING’S respectfully requests judgment          in its favor

and against Plaintiff on each and every claim asserted by them. Furthermore, Defendant

DON     KING'S    requests this Honorable Court to award          it attorney’s fees and costs and

such other relief as this Court deems appropriate under the circumstances.             Defendant,

DON     KING’S demands a jury trial on all issues so triable as a matter of right.

                                  DEMAND FOR JURY TRIAL

         DON     KING’S hereby demands trial by jury of all issues so triable as of right by

jury.

         Respectfully submitted this 19"     day of May, 2021.

                                           BUTLER WEIHMULLER             KATZ CRAIG LLP


                                           Utne go sex
                                           DENISE M. ANDERSON,            ESQ.
                                           Florida Bar No.: 0029602
                                           danderson@butler.legal
                                           KATE F. GASET, ESQ.
                                           Florida Bar No.: 010215
                                           kgaset@butler.legal
                                           Secondary:    krieck@butler.com
                                                        rjorge@butler.legal
                                           400 N. Ashley Drive, Suite 2300
                                           Tampa,    FL   33602
                                           Attorneys for Defendant/Cross-Claim Defendant,
                                           Don King’s Concrete, Inc.




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CERTIFICATE OF SERVICE


        | hereby certify that a true and correct copy of the foregoing was electronically filed

with the Clerk of the Court by using the Florida E-Portal and that a true and correct copy

of the foregoing has been furnished to the following counsel of record via the Florida E-

Portal this 20'" day of May, 2021.

 Phillip E. Joseph, Esq.                        Lannie D. Hough Jr., Esq.
 Evan J. Small, Esq.                            Robin Leavengood, Esq.
 Nicholas B. Vargo, Esq.                        James Michael Walls, Esq.
 Allana D.E. Smith, Esq.                        Brian C. Porter, Esq.
 Ball Janik, LLP                                Carlton Fields
 201   E. Pine Street, Suite 600                4221   W. Boy Scout Blvd., Suite 1000
 Orlando, Florida 32801                         Tampa, Florida 33607
 pjoseph@balljanik.com                          lhough@carltonfields.com
 esmall@balljanik.com                           nbonilla@carltonfields.com
 nvargo@balljanik.com                           rleavengood@carltonfields.com
 asmith@balljanik.com                           brosa@carltonfields.com
 ypalmer@balljanik.com                          wwilliams@carltonfields.com
 cbetancourt@balljanik.com                      bporter@carltonfields.com
 dmiksell@balljanik.com                         jcostello@carltonfields.com
 mwise@balljanik.com                            mwalls@carltonfields.com
 orlandodocket@balljanik.com
                                                Counsel for Royal Oak Homes, LLC
 Counsel for Plaintiffs

 Denise M. Anderson,       Esq.                 Paul Sidney Elliott, Esq.
 Ashley M. Mattingly, Esq.                      P.O, Box 274204
 Butler Weihmuller Katz Craig LLP               Tampa, FL 33688-4204
 400 N. Ashley Drive, Suite 2300                pse@psejd.com
 Tampa, FL
 danderson@butler.legal                         Counsel for Hugh MacDonald
 amattingly@butler.legal                        Construction, Inc.
jjacobs@butler.legal
rjorge@butler.legal

 Counsel for Hugh MacDonald
 Construction, Inc.

 Thamir A.R. Kaddouri Jr., Esq.                 Peter J. Kapsales, Esq.
 Penelope T. Rowlett, Esq.                      Margaret M. Efta, Esq.
 Beth Ann Tobey, Esq.                           Milne Law Group,    P.A.


                                               12
Law Office of Thamir A.R. Kaddouri, Jr.,    301   E. Pine Street, Suite 525
P.A.                                        Orlando, FL 32801
3220 West Cypress Street                    pkapsales@milnelawgroup.com
Tampa,     FL 33607                         mefta@milnelawgroup.com
Thamir.Kaddouri@tampalaw.org                eservice@milnelawgroup.com
Service@TampaLaw.org
Mindy.hoffman@tampalaw.org                  Counsel for Weathermaster Building
                                            Products, Inc.
Counsel for Imperial Building
Corporation

Jayne Ann Pittman, Esq.                     Timothy C. Ford, Esq.
Natalie C. Fischer, Esq.                    Andrew E. Holway, Esq.
Conroy Simberg                              Hill Ward Henderson
Two South Orange Ave, Suite 300             101 E. Kennedy Blvd., Suite 3700
Orlando,   Florida 32801                    Tampa,    Florida 33602
eserviceorl@conroysimberg.com               tim.ford@hwhlaw.com
jpittman@conroysimberg.com                  andrew.holway@hwhlaw.com
nfischer@conroysimberg.com                  tracy.coale@hwhlaw.com
mmaitland@conroysimberg.com                 kathy.wernsing@hwhlaw.com
eserviceorl@conroysimberg.com               derrick.calandra@hwhlaw.com

Counsel for Advanced Wrapping and           Counsel for Weintraub Inspections &
Concrete Solutions of Central Florida,      Forensics, Inc. n/k/a Weintraub
Inc.                                        Engineering and Inspections, Inc.

Bruce R. Calderon, Esq.                     Eric J. Netcher, Esq.
D. Bryan Hill, Esq.                         Walker, Revels, Greninger & Netcher,
Audra R. Creech, Esq.                       PLLC
Milber Makris Plousadis & Seiden, LLP       189 S. Orange Ave., Suite 1830
1900 NW Corporate Blvd, East Tower,         Orlando, FL 32801
Suite 440                                   enetcher@wrgn-law.com
Boca Raton, Florida 33431                   hpayesh@wrgn-law.com
bcalderon@milbermakris.com
kmcdowell@milbermakris.com                  Counsel for All Glass Installation Corp.
dhill@milbermakris.com
acreech@milbermakris.com
apiazzese@milbermakris.com

Counsel for Brown + Company
Architecture, Inc.

S. Scott Ross, Esq.                         Andrew T. Marshall, Esq.
Groelle & Salmon, P.A.                      Hamilton, Price & Marshall, P.A.
1715 N. Westshore Blvd., Suite 320          2400 Manatee Ave. W
Tampa,     FL 33607                         Bradenton,   F L34205


                                           13
gstcourtdocs@gspalaw.com                       Andrew@hamiltonpricelaw.com
sross@gspalaw.com                              nancy@hamiltonpricelaw.com
cebanks@gspalaw.com                            kelsey@hamiltonpricelaw.com
mcoleman@gspalaw.com
                                               Counsel for T&M Construction of
Counsel for Helberg Enterprises, LLC           Sanford, Inc.

Vicki Lambert, Esq.                            Phillip S. Howell, Esq.
Alec Masson, Esq.                              Kyle McNeal, Esq.
Luks, Santaniello, Petrillo & Cohen            Galloway, Johnson, Tompkins, Burr &
201 S. Orange Avenue, Suite 400                Smith, P.LC.
Orlando,   FL 32801                            400 N. Ashley Dr., Suite 1000
Luksorl-pleadings@Is-law.com                   Tampa, FL 33602
amason@insurancedefense.net                    tampaservice@gallowaylawfirm.com
jpestonit@insurnacedefense.net                 phowell@gallowaylawfirm.com
                                               kmcneal@gallowaylawfirm.com
Counsel for Casey Hawkins Glass
                                               Counsel for Casey Hawkins Glass

Cole J. Copertino, Esq.                        Joseph L. Zollber, Esq.
Wright, Fulford, Moorhead   & Brown,   P.A.    Law Office of Christopher J. Norris
505 Maitland Avenue, Suite 1000                P.O. Box 7217
Altamonte Springs, FL 32701                    London, KY 40742
ccopertino@wimblaw.com                         FloridaCDLegalMail@LibertyMutual.com
cbraungart@wfmblaw.com                         Joseph.zollner@libertymutual.com
lwilliams@wfmblaw.com
                                               Counsel for Lios Concrete Corp.
Counsel for Well Hung Windows &
Doors



                                              Ucar gos
                                          KATE F. GASET, ESQ.




                                              14