Preview
Filing # 129173062 E-Filed 06/21/2021 03:28:10 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, CASE NO.:2020-CA-002942
Plaintiff,
V.
ROYAL OAK HOMES, LLC, A FLORIDA
LIMTIED LIABILTY 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., 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 ARCHITECHURE,
INC., A FLORIDA CORPORATION;
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; IMPERIAL FLORIDA
CORPORATION, A FLORIDA
CORPORATION; PREMIER PLASTERING
OF CENTRAL FLORIDA, INC., A FLORIDA
CORPORTION; WEATHERMASTER
BUILDING PRODUCTS, INC., A FLORIDA
CORPORATION; WEINTRAUB
INSPECTIONS & FORENSICS, INC., N/K/A
WIENTRAUB ENGINEERING AND
INSEPCTIONS, INC.; WOLF’S IRRIGATION
& LANDSCAPING, INC., A FLORIDA
CORPORATION; BROWN+COMPANY
ARCHITECHTURE, INC., A FLORIDA
CORPORATION;
Crossclaim 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;
HOBBIT WINDOWS, LLC, A FLORIDA
LIMITED LIABILITY COMPANY; T&M
CONSTRUCTION OF SANFORD, INC., A
FLORIDA CORPORATION; AND WELL
HUNG WINDOWS & DOORS, LLC, A
FLORIDA LIMITED LIABILITY COMPANY;
Third-Party Defendants
PREMIER PLASTERING OF CENTRAL FLORIDA, INC.’S ANSWER
AND AFFIRMATIVE DEFE} S TO PLAINTIFF’S AMENDED
COMPLAINT AND DEMAND FOR JURY TRIAL
COMES NOW the Defendant, PREMIER PLASTERING OF CENTRAL FLORIDA,
INC. (“PREMIER”), by and through its undersigned counsel, and pursuant to the Florida Rules of
Civil Procedure 1.110, and hereby files this Answer and Affirmative Defenses to Plaintiffs,
VILLAS AT EMERALD LAKE HOMEOWNERS ASSOCIATION, INC. (“Plaintiff”), Amended
Complaint and Demand for Jury Trial, and states the following:
NATURE OF THE CASE
1 To the extent the statement contained in paragraph 1 contains an allegation that
PREMIER caused damages to the Project, denied. Otherwise, without knowledge, therefore
denied.
JURISDICTION AND VENUE
Admitted for jurisdictional purposes only, otherwise denied.
Admitted for venue purposes only, otherwise denied.
Without knowledge, therefore denied.
PREMIER admits it conducted business in Osceola County, Florida. Otherwise,
without knowledge, therefore denied.
6. Without knowledge, therefore denied.
7 Without knowledge, therefore denied.
8 Denied. Plaintiff has not identified any defect, in reasonable detail, with
PREMIER’s scope of work in accordance with Chapter 558, Florida Statutes. Accordingly,
Plaintiff is barred from pursing and relief from PREMIER, until such time as Plaintiff complies
with the requirements set forth in Chapter 558, Florida Statutes.
PARTIES
9, — 27. Without knowledge, therefore denied.
28. Admitted.
29. Denied as worded.
30-37. Without knowledge, therefore denied.
38. As to PREMIER, denied as worded. As to the other Defendants, without
knowledge, therefore denied.
39. Without knowledge, therefore denied.
40. As to PREMIER, denied. Otherwise, without knowledge, therefore denied.
FACTS COMMON TO ALL CLAIMS FOR RELIEF
41-48. Without knowledge, therefore denied.
49. As to PREMIER, denied. Otherwise, without knowledge, therefore denied.
50. As to PREMIER, denied. Otherwise, without knowledge, therefore denied.
51 As to PREMIER, denied. Otherwise, without knowledge, therefore denied.
52-57. Without knowledge, therefore denied.
58 Denied.
59.-61. Without knowledge, therefore denied.
62 As to PREMIER, denied. Otherwise, without knowledge, therefore denied.
63 As to PREMIER, denied. Otherwise, without knowledge, therefore denied.
64. As to PREMIER, denied. Otherwise, without knowledge, therefore denied.
65. Denied.
66. As to PREMIER, denied. Otherwise, without knowledge, therefore denied.
67. As to PREMIER, denied. Otherwise, without knowledge, therefore denied.
COUNTS I THROUGH XIX
68. - 208. Counts I through XIX (i.e., paragraphs 68 through 208) of the Amended
Complaint and Demand for Jury Trial do not pertain to and do not seek affirmative relief against
PREMIER, and accordingly no response to the allegations of said Counts are required of
PREMIER. However, should the allegations of Counts I through XIX be deemed to pertain or
seek to establish any basis for the imposition of liability against PREMIER, PREMIER denies
each and every allegation contained therein.
COUNT XX - VIOLATION OF FLORIDA BUILDING CODE
(against PREMIER)
209, PREMIER te-alleges its responses to the allegations contained in paragraphs | —
67, above, as if fully restated herein.
210. Denied as worded.
211. Florida Statute, Section 553.84 speaks for itself. Otherwise, denied.
212. The Florida Building Codes Act speaks for itself. Otherwise, denied.
213 Denied.
214. Without knowledge, therefore denied.
215 Denied.
216. Denied.
217. Denied.
COUNT XXI —- NEGLIGENCE
(against PREMIER)
218. PREMIER re-alleges its responses to the allegations contained in paragraphs 1-67
and paragraphs 210-217, above, as if fully restated herein.
219. Denied as worded.
220. Denied as worded.
221 Denied.
222. Denied.
223 Denied.
COUNTS XXII THROUGH XXIx
224, — 285. Counts XXII through XXIX (i.e., paragraphs 224 through 285) of the
Amended Complaint and Demand for Jury Trial do not pertain to and do not seek affirmative relief
against PREMIER, and accordingly no response to the allegations of said Counts are required of
PREMIER. However, should the allegations of Counts XXII through XXIX be deemed to pertain
or seek to establish any basis for the imposition of liability against PREMIER, PREMIER denies
each and every allegation contained therein.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that Plaintiff had a duty to
mitigate its damages, and any recovery by Plaintiff in this action should be reduced to the extent
which Plaintiff failed to mitigate its damages.
SECOND AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that Plaintiff's claims are
barred by the doctrine of laches. The Project was completed many years prior to the filing of this
lawsuit. With regard to any defects known at or near the time Plaintiff assumed control of the
Townhomes, Plaintiff sat on its rights to the prejudice of PREMIER and should therefore be barred
in that regard.
THIRD AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that PREMIER is not liable to
Plaintiff because the defects Plaintiff complains of were patent and obvious and existed at the time
the work was accepted by Plaintiff. Slavin v. Kay, 108 So. 2d 462 (Fla. 1959).
FOURTH AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that any alleged defects or
deficiencies in any work performed by PREMIER at the Project are a result of lack of proper
maintenance, abuse, or neglect by Plaintiff and/or the individual owners rather than defective
materials or original work performed by PREMIER.
FIFTH AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that PREMIER is entitled to
an apportionment of damages in relation to the degree of fault, if any, of all parties, entities, or
persons (named in this action or unnamed), pursuant to section 768.81, Florida Statutes, and the
principles of law set forth by Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993). PREMIER specifically
names each and every party to this action, and any affiliates of the aforementioned, and any other
persons or entities involved with the construction of the townhomes, whose identity remains
unknown, who were negligent and at fault for any damages proven by Plaintiff. PREMIER further
reserves the rights to supplement this Affirmative Defense as discovery progresses in this action.
SIXTH AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that Plaintiffs claims may be
barred or limited by spoliation of evidence to the extent Plaintiff engaged in repairs or destructive
testing without notice to PREMIER that disturbed the original construction of the Project.
Ss NTH AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that any alleged defects in
PREMIER’s scope of work are wholly the result of normal wear and tear and/or damages due to
weather conditions or other causes or circumstances.
EIGHTH AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that Plaintiff's claims are
barred by the applicable statute of limitations and/or statute of repose set forth in Florida Statute,
Section 95.11.
NINTH AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that Plaintiff's claims must be
set off and reduced to the extent Plaintiff receives payment or consideration from other parties or
non-parties for its alleged damages.
TENTH AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that the extent the remediation
proposed or performed by Plaintiff, has resulted, or will result in work beyond what was called for
in the applicable plans and specifications, said work is betterment and PREMIER is not legally
responsible for betterment to the Project. Grossman v. Sea Air Towers, Ltd., 513 So. 2d 686 (Fla.
3d DCA 1987).
ELEVENTH AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that to the extent the
remediation proposed or performed by Plaintiff, has resulted, or will result in economic waste,
PREMIER is not legally responsible for economically wasteful remediation to the Townhomes.
See Grossman Holdings, Ltd. v. Hourihan, 414 So. 2d 1037 (Fla. 1982).
TWELFTH AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that Plaintiff's claims are
barred because PREMIER followed the plans and specifications in performing its work at the
subject Townhomes such that PREMIER cannot be held liable for any loss or damages resulting
from defective plans and specifications and Plaintiff's claims are therefore barred by the doctrine
espoused under United States v. Spearin, 248 U.S. 132 (1918) and its progeny.
THIRTEENTH AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that the designer of the Project
was charged with the non-delegable duty of ensuring that the design conformed with and met all
applicable laws, regulations and building codes, as required by Atlantic National Bank of
Jacksonville v. Modular Age, Inc., 363 So.2d 1152 (Fla. 1" DCA 1978). PREMIER followed the
plans and specifications in performing its work at the Project as directed, and to the extent Plaintiff
now maintains that the design or specified materials do not conform with all applicable laws,
regulations, or building codes, PREMIER is not legally responsible for same.
FOURTEENTH AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that Plaintiff's cause of action
for building code violation is barred because, upon information and belief: (a) The required
building permits were obtained; (b) the local government or public agency with authority to
enforce the Florida Building Code approved the plans; (c) PREMIER’s scope of work passed all
required inspections under the code (if applicable); (d) there is no personal injury or damage to
property other than the townhomes that are the subject of the permits, plans, and inspections; and
(ec) PREMIER did not know and could not have known that any alleged violation existed.
FIFTEENTH AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that to the extent other parties
or persons, including Plaintiff and/or the individual unit owners, subsequently modified or altered
the work of PREMIER, PREMIER cannot be held liable to Plaintiff.
SIXTEENTH AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that Plaintiffs claims are
barred, in whole or in part, to the extent that the alleged damages were caused by intervening or
superseding causes over which PREMIER had no control.
Ss NTEENTH AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that Plaintiff's claims are
barred, in whole or in part, to the extent a lack of causal relationship exists between the alleged
damages and PREMIER’s work.
EIGHTEENTH AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that Plaintiff's claims are
barred, in whole or in part, by the doctrine of avoidable consequences to the extent that Plaintiff,
through reasonable diligence, could have avoided some or all of the alleged damages.
NINETEENTH AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that to the extent Plaintiff
seeks recovery for alleged construction defects which are not addressed, in reasonable detail, in a
Chapter 558 notice, Plaintiff may not pursue those claims at trial pursuant to section 558.004(11),
Florida Statutes. Plaintiff has not identified any defect, in reasonable detail, with PREMIER’s
scope of work in accordance with Chapter 558, Florida Statutes. Plaintiffs Chapter 558 notice
merely asserts that “[t]he defects include, but are not limited to,... extensive stucco cracking,”
without describing the alleged defect in reasonable detail and merely includes photographs.
Accordingly, Plaintiff is barred from pursuing any relief from PREMIER, until such time Plaintiff
complies with the requirements set forth in Chapter 558, Florida Statutes.
TWENTIETH AFFIRMATIVE DEFENSE
PREMIER hereby incorporates herein all affirmative defenses alleged or to be alleged by
all other Defendants to Plaintiff’s claims, and to the extent applicable and available to PREMIER,
incorporates those defenses herein.
PREMIER reserves the right to amend its Affirmative Defenses as discovery proceeds in
this action and information supporting amendment of its Affirmative Defenses becomes known to
PREMIER.
WHEREFORE the Defendant, PREMIER PLASTERING OF CENRAL FLORIDA,
INC., respectfully requests this Court to:
a) enter judgment in favor of PREMIER PLASTERING OF CENTRAL FLORIDA,
INC.;
b) deny the relief sought in the Amended Complaint in its entirety;
c) award PREMIER PLASTERING OF CENTRAL, INC., its costs pursuant to
section 57.041, Florida Statutes; and
d) grant PREMIER PLASTERING OF CENTRAL, INC. such other and further relief
as this Court deems just and proper.
{INTENTIONALLY LEFT BLANK}
CERTIFICATE OF SERVICE
I] HEREBY CERTIFY that on the 21% day of June, 2021, I electronically filed the
foregoing with the Clerk of the Court by using the E-Filing Portal, which will send a notice of
electronic filing to all parties on the attached Service List.
MOODY & GRAF, P.A.
Le Cheley G WMouudy, Gr
CHESLEY G. MOODY, JR., ESQ
Florida Bar No.: 544426
MAI M. LE, ESQ.
Florida Bar No.: 112592
1101 N. Lake Destiny Rd., Suite 200
Maitland, FL 32751
Telephone: (407) 755-6900
Facsimile: (407) 755-6913
cmoody@moodygraf.com
mile@moodygraf.com
kpollak@moodygraf.cor
tdixon@moodyegraf.com
Counsel for Premier Plastering of Central Florida, Inc.
SERVICE LIST
Allana D.E. Smith, Esq. Lannie D. Hough, Jr., Esq.
Evan J. Small, Esq. Robin H. Leavengood, Esq.
Nicholas B. Vargo, Esq. James Michael Walls, Esq.
Phillip E. Joseph, Esq. Brian C. Porter, Esq.
BALL JANIK LLP CARLTON FIELDS, P.A.
201 East Pine Street, Suite 600 4221 W. Boy Scout Blvd.
Orlando, FL 32801 Tampa, FL 33607
Phone: 407.455.5664 Phone: 813.223.7000
pjosep! alljanik.com lhough@ecarltonfields.com
esmall@balljanik.com nbonilla@calrtonfields.com
nvargo@balljanik.com ywilliams@carltonfields.com
smith@balljanik.com rleavengood@carltonfields.com
ypalmer@ballianik.com brosa@carltonfields.com
cbetancourt@balljanik.com bporter@carltonfields.com
nwise@ballianik.com jcostello@carltonfields.com
dmmiksell@balljanik.com mwalls@carltonfields.com
orlandodocket@balljanik.com Counsel for Royal Oak Homes, LLC
Counsel for Plaintiff
Thamir A.R. Kaddouri, Jr., Esq. Paul Sidney Elliott, Esq.
Penelope T. Rowlett, Esq. P.O. Box 274204
Beth Ann Tobey, Esq. Tampa, FL 33688
LAW OFFICE OF THAMIR A.R. KADDOURI, Phone: 813.265.1314
JR. P.A. pse@psejd.com
3220 West Cypress Street
Tampa, FL 33607 Co-Counsel for Hugh MacDonald Construction,
Phone: 813.879.5752 Ine.
Thamir.kaddouri@tampalaw.com
service(@tampalaw.cory Denise M. Anderson, Esq.
beth.tobey@tampalaw.com Ashley M. Mattingly, Esq.
Counsel for Imperial Building Corporation BUTLER WEIHMULLER KATZ CRAIG LLP
400 N. Ashley Dr., Suite 2300
Tampa, FL 33602
Phone: 813.281.1900
danderson@butler.legal
mattingly@butler.legal
.
acobs(@butler.legal
jorge@butler legal
Co-Counsel for Hugh MacDonald Construction,
Ine.
Peter J. Kapsales, Esq. Denise M. Anderson, Esq.
Margaret M. Efta, Esq. Kate F. Gaset, Esq.
MILNE LAW GROUP, P.A. BUTLER WEIHMULLER KATZ CRAIG LLP
301 E. Pine Street, Suite 525 400 N. Ashley Drive, Suite 2300
Orlando, FL 32801 Tampa, FL 33602
Phone: 321.558.7700 danderson@butler legal
pkapsales@milnelawgroup.com kgaset@butler. legal
mefta@ nelawgroup.com dwhite@butler.legal
eservice@milnelawgroup.com krieck@pbutler.legal
Counsel for Weathermaster Building Products, jorge@butler legal
Inc. Counsel for Don King’s Concrete, Inc.
Timothy C. Ford, Esq. Jayne Ann Pittman, Esq.
Andrew E. Holway, Esq. Natalie C. Fischer, Esq.
HILL WARD HENDERSON CONROY SIMBERG
101 E. Kennedy Blvd., Suite 3700 Two South Orange Ave., Suite 300
Tampa, FL 33602 Orlando, FL 32801
Tim.ford@hwhlaw.com Phone: 407.649.9797
Andrew, holway@hwhlaw.com & erviceor \@conroysimberg. com
Tracy.coale@hwhlaw.com jpittman@conroysimberg.com
Kathy.wernsing@hwhlaw.com mimaitland. conroysimberg.com
Derrick.calandra@hwhlaw.com nfischer@conroysimberg.com
Counsel for Weintraub Inspections & Forensics, Counsel for Advanced Wrapping and Concrete
Inc. n/k/a Weintraub Engineering and Solutions of Central Florida, Inc.
Inspections, Inc.
Bruce R. Calderon, Esq. Eric J. Netcher, Esq.
D. Bryan Hall, Esq. WALKER, REVELS, GRENINGER &
Audra R. Creech, Esq. NETCHER PLLC
MILBER MAKRIS PLOUSADIS & SEIDEN, 189 S. Orange Ave., Suite 1830
LLP Orlando, FL 32801
1900 NW Corporate Blvd. Phone: 407.789.1830
East Tower, Suite 440 snetcher@wren-law.con
Boca Raton, FL 33431 hpayesh@wren-law.com
Phone: 561.994.7310 Counsel
for All Glass Installation Corp.
bealderon@milbermakris.com
dhili@milbermakris.com
acreech@milbermakris.com
SCTE COM OCT Mas. LOM
kmedowell@milbermakris.com
Counsel for Brown + Company Architecture, Inc.
S. Scott Ross, Esq. Vicki Lambert, Esq.
GROELLE & SALMON, P.A. Alec Masson, Esq.
1715 N. Westshore Blvd., Suite 320 LUKS, SANTANIELLO, PETRILLO & COHEN
Tampa, FL 33607 201 S. Orange Ave., Suite 400
Phone: 813.846.7200 Orlando, FL 32801
gstcourtdocs@gspalaw.com Phone: 407.540.9170
SrOss: @gspala wW.com Luksorl-pleadings@|s-law.com
cebanks@gspalaw.com amason@insurancedefense.net
meoleman@gspalaw.com ipestonit@insurancedefense.net
Counsel for Helberg Enterprises, LLC Co-Counsel for Casey Hawkins Glass, Inc.
Michael D. Ruel, Esq.
Kyle NeNeal, Esq.
GALLOWAY, JOHNSON, TOMPKINS, BURR
& SMITH, P.L.C.
400 N. Ashley Dr., Suite 1000
Tampa, FL 33602
Phone: 813.977.1200
tampaservbice@gallowaylawfirm.com
mruel@gallowaylawfirm.com
kmeneal@gallowaylawfirm.com
Co-Counsel for Casey Hawkins Glass, Inc.
Andrew T. Marshall, Esq. Bruce R. Calderon, Esq.
HAMILTON, PRICE & MARSHALL, P.A. D. Bryan Hill, Esq.
2400 Manatee Ave. W. Audra R. Creech, Esq.
Bradenton, FL 34205 MILBER MAKRIS PLOUSADIS & SEIDEN,
Phone: 941.748.0550 LLP
andrew@hamiltonpricelaw.com 1900 NW Corporate Blvd.
nancy(@hamultonpricelaw.com East Tower, Suite 440
kelsey@hamiltonpricelaw.com Boca Raton, FL 33431
Counsel for T&M Construction of Sanford, Inc. Phone: 561.994.7310
bealderon@milbermakris.com
dh milbermak Om
acrece: CHMAaKTIS.COM
Counsel for Brown + Company Architecture, Inc.
Cole J. Copertino, Esq. Joseph L. Zollner, Esq.
WRIGHT, FULFORD, MOORHEAD & BROWN. LAW OFFICE OF AMY L. WARPINSKI
P.A. P.O, Box 7217
505 Maitland Blvd., Suite 1000 London, KY 40742
Altamonte Springs, FL 32701 floridacdiegalmail@libertymutual.com
Phone: 407.425.0234 joseph.zollner@libertymutual.com
copertino@wimblaw.coim Counsel for Lios Concrete Corp
cbraungart@wfmblaw.com
twilliams@wfmblaw.com
Counsel for Well Hung Windows & Doors
Preview
Filing # 129173062 E-Filed 06/21/2021 03:28:10 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, CASE NO.:2020-CA-002942 Plaintiff, V. ROYAL OAK HOMES, LLC, A FLORIDA LIMTIED LIABILTY 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., 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 ARCHITECHURE, INC., A FLORIDA CORPORATION; 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; IMPERIAL FLORIDA CORPORATION, A FLORIDA CORPORATION; PREMIER PLASTERING OF CENTRAL FLORIDA, INC., A FLORIDA CORPORTION; WEATHERMASTER BUILDING PRODUCTS, INC., A FLORIDA CORPORATION; WEINTRAUB INSPECTIONS & FORENSICS, INC., N/K/A WIENTRAUB ENGINEERING AND INSEPCTIONS, INC.; WOLF’S IRRIGATION & LANDSCAPING, INC., A FLORIDA CORPORATION; BROWN+COMPANY ARCHITECHTURE, INC., A FLORIDA CORPORATION; Crossclaim 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; HOBBIT WINDOWS, LLC, A FLORIDA LIMITED LIABILITY COMPANY; T&M CONSTRUCTION OF SANFORD, INC., A FLORIDA CORPORATION; AND WELL HUNG WINDOWS & DOORS, LLC, A FLORIDA LIMITED LIABILITY COMPANY; Third-Party Defendants PREMIER PLASTERING OF CENTRAL FLORIDA, INC.’S ANSWER AND AFFIRMATIVE DEFE} S TO PLAINTIFF’S AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL COMES NOW the Defendant, PREMIER PLASTERING OF CENTRAL FLORIDA, INC. (“PREMIER”), by and through its undersigned counsel, and pursuant to the Florida Rules of Civil Procedure 1.110, and hereby files this Answer and Affirmative Defenses to Plaintiffs, VILLAS AT EMERALD LAKE HOMEOWNERS ASSOCIATION, INC. (“Plaintiff”), Amended Complaint and Demand for Jury Trial, and states the following: NATURE OF THE CASE 1 To the extent the statement contained in paragraph 1 contains an allegation that PREMIER caused damages to the Project, denied. Otherwise, without knowledge, therefore denied. JURISDICTION AND VENUE Admitted for jurisdictional purposes only, otherwise denied. Admitted for venue purposes only, otherwise denied. Without knowledge, therefore denied. PREMIER admits it conducted business in Osceola County, Florida. Otherwise, without knowledge, therefore denied. 6. Without knowledge, therefore denied. 7 Without knowledge, therefore denied. 8 Denied. Plaintiff has not identified any defect, in reasonable detail, with PREMIER’s scope of work in accordance with Chapter 558, Florida Statutes. Accordingly, Plaintiff is barred from pursing and relief from PREMIER, until such time as Plaintiff complies with the requirements set forth in Chapter 558, Florida Statutes. PARTIES 9, — 27. Without knowledge, therefore denied. 28. Admitted. 29. Denied as worded. 30-37. Without knowledge, therefore denied. 38. As to PREMIER, denied as worded. As to the other Defendants, without knowledge, therefore denied. 39. Without knowledge, therefore denied. 40. As to PREMIER, denied. Otherwise, without knowledge, therefore denied. FACTS COMMON TO ALL CLAIMS FOR RELIEF 41-48. Without knowledge, therefore denied. 49. As to PREMIER, denied. Otherwise, without knowledge, therefore denied. 50. As to PREMIER, denied. Otherwise, without knowledge, therefore denied. 51 As to PREMIER, denied. Otherwise, without knowledge, therefore denied. 52-57. Without knowledge, therefore denied. 58 Denied. 59.-61. Without knowledge, therefore denied. 62 As to PREMIER, denied. Otherwise, without knowledge, therefore denied. 63 As to PREMIER, denied. Otherwise, without knowledge, therefore denied. 64. As to PREMIER, denied. Otherwise, without knowledge, therefore denied. 65. Denied. 66. As to PREMIER, denied. Otherwise, without knowledge, therefore denied. 67. As to PREMIER, denied. Otherwise, without knowledge, therefore denied. COUNTS I THROUGH XIX 68. - 208. Counts I through XIX (i.e., paragraphs 68 through 208) of the Amended Complaint and Demand for Jury Trial do not pertain to and do not seek affirmative relief against PREMIER, and accordingly no response to the allegations of said Counts are required of PREMIER. However, should the allegations of Counts I through XIX be deemed to pertain or seek to establish any basis for the imposition of liability against PREMIER, PREMIER denies each and every allegation contained therein. COUNT XX - VIOLATION OF FLORIDA BUILDING CODE (against PREMIER) 209, PREMIER te-alleges its responses to the allegations contained in paragraphs | — 67, above, as if fully restated herein. 210. Denied as worded. 211. Florida Statute, Section 553.84 speaks for itself. Otherwise, denied. 212. The Florida Building Codes Act speaks for itself. Otherwise, denied. 213 Denied. 214. Without knowledge, therefore denied. 215 Denied. 216. Denied. 217. Denied. COUNT XXI —- NEGLIGENCE (against PREMIER) 218. PREMIER re-alleges its responses to the allegations contained in paragraphs 1-67 and paragraphs 210-217, above, as if fully restated herein. 219. Denied as worded. 220. Denied as worded. 221 Denied. 222. Denied. 223 Denied. COUNTS XXII THROUGH XXIx 224, — 285. Counts XXII through XXIX (i.e., paragraphs 224 through 285) of the Amended Complaint and Demand for Jury Trial do not pertain to and do not seek affirmative relief against PREMIER, and accordingly no response to the allegations of said Counts are required of PREMIER. However, should the allegations of Counts XXII through XXIX be deemed to pertain or seek to establish any basis for the imposition of liability against PREMIER, PREMIER denies each and every allegation contained therein. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that Plaintiff had a duty to mitigate its damages, and any recovery by Plaintiff in this action should be reduced to the extent which Plaintiff failed to mitigate its damages. SECOND AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that Plaintiff's claims are barred by the doctrine of laches. The Project was completed many years prior to the filing of this lawsuit. With regard to any defects known at or near the time Plaintiff assumed control of the Townhomes, Plaintiff sat on its rights to the prejudice of PREMIER and should therefore be barred in that regard. THIRD AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that PREMIER is not liable to Plaintiff because the defects Plaintiff complains of were patent and obvious and existed at the time the work was accepted by Plaintiff. Slavin v. Kay, 108 So. 2d 462 (Fla. 1959). FOURTH AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that any alleged defects or deficiencies in any work performed by PREMIER at the Project are a result of lack of proper maintenance, abuse, or neglect by Plaintiff and/or the individual owners rather than defective materials or original work performed by PREMIER. FIFTH AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that PREMIER is entitled to an apportionment of damages in relation to the degree of fault, if any, of all parties, entities, or persons (named in this action or unnamed), pursuant to section 768.81, Florida Statutes, and the principles of law set forth by Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993). PREMIER specifically names each and every party to this action, and any affiliates of the aforementioned, and any other persons or entities involved with the construction of the townhomes, whose identity remains unknown, who were negligent and at fault for any damages proven by Plaintiff. PREMIER further reserves the rights to supplement this Affirmative Defense as discovery progresses in this action. SIXTH AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that Plaintiffs claims may be barred or limited by spoliation of evidence to the extent Plaintiff engaged in repairs or destructive testing without notice to PREMIER that disturbed the original construction of the Project. Ss NTH AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that any alleged defects in PREMIER’s scope of work are wholly the result of normal wear and tear and/or damages due to weather conditions or other causes or circumstances. EIGHTH AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that Plaintiff's claims are barred by the applicable statute of limitations and/or statute of repose set forth in Florida Statute, Section 95.11. NINTH AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that Plaintiff's claims must be set off and reduced to the extent Plaintiff receives payment or consideration from other parties or non-parties for its alleged damages. TENTH AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that the extent the remediation proposed or performed by Plaintiff, has resulted, or will result in work beyond what was called for in the applicable plans and specifications, said work is betterment and PREMIER is not legally responsible for betterment to the Project. Grossman v. Sea Air Towers, Ltd., 513 So. 2d 686 (Fla. 3d DCA 1987). ELEVENTH AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that to the extent the remediation proposed or performed by Plaintiff, has resulted, or will result in economic waste, PREMIER is not legally responsible for economically wasteful remediation to the Townhomes. See Grossman Holdings, Ltd. v. Hourihan, 414 So. 2d 1037 (Fla. 1982). TWELFTH AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that Plaintiff's claims are barred because PREMIER followed the plans and specifications in performing its work at the subject Townhomes such that PREMIER cannot be held liable for any loss or damages resulting from defective plans and specifications and Plaintiff's claims are therefore barred by the doctrine espoused under United States v. Spearin, 248 U.S. 132 (1918) and its progeny. THIRTEENTH AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that the designer of the Project was charged with the non-delegable duty of ensuring that the design conformed with and met all applicable laws, regulations and building codes, as required by Atlantic National Bank of Jacksonville v. Modular Age, Inc., 363 So.2d 1152 (Fla. 1" DCA 1978). PREMIER followed the plans and specifications in performing its work at the Project as directed, and to the extent Plaintiff now maintains that the design or specified materials do not conform with all applicable laws, regulations, or building codes, PREMIER is not legally responsible for same. FOURTEENTH AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that Plaintiff's cause of action for building code violation is barred because, upon information and belief: (a) The required building permits were obtained; (b) the local government or public agency with authority to enforce the Florida Building Code approved the plans; (c) PREMIER’s scope of work passed all required inspections under the code (if applicable); (d) there is no personal injury or damage to property other than the townhomes that are the subject of the permits, plans, and inspections; and (ec) PREMIER did not know and could not have known that any alleged violation existed. FIFTEENTH AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that to the extent other parties or persons, including Plaintiff and/or the individual unit owners, subsequently modified or altered the work of PREMIER, PREMIER cannot be held liable to Plaintiff. SIXTEENTH AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that Plaintiffs claims are barred, in whole or in part, to the extent that the alleged damages were caused by intervening or superseding causes over which PREMIER had no control. Ss NTEENTH AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that Plaintiff's claims are barred, in whole or in part, to the extent a lack of causal relationship exists between the alleged damages and PREMIER’s work. EIGHTEENTH AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that Plaintiff's claims are barred, in whole or in part, by the doctrine of avoidable consequences to the extent that Plaintiff, through reasonable diligence, could have avoided some or all of the alleged damages. NINETEENTH AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that to the extent Plaintiff seeks recovery for alleged construction defects which are not addressed, in reasonable detail, in a Chapter 558 notice, Plaintiff may not pursue those claims at trial pursuant to section 558.004(11), Florida Statutes. Plaintiff has not identified any defect, in reasonable detail, with PREMIER’s scope of work in accordance with Chapter 558, Florida Statutes. Plaintiffs Chapter 558 notice merely asserts that “[t]he defects include, but are not limited to,... extensive stucco cracking,” without describing the alleged defect in reasonable detail and merely includes photographs. Accordingly, Plaintiff is barred from pursuing any relief from PREMIER, until such time Plaintiff complies with the requirements set forth in Chapter 558, Florida Statutes. TWENTIETH AFFIRMATIVE DEFENSE PREMIER hereby incorporates herein all affirmative defenses alleged or to be alleged by all other Defendants to Plaintiff’s claims, and to the extent applicable and available to PREMIER, incorporates those defenses herein. PREMIER reserves the right to amend its Affirmative Defenses as discovery proceeds in this action and information supporting amendment of its Affirmative Defenses becomes known to PREMIER. WHEREFORE the Defendant, PREMIER PLASTERING OF CENRAL FLORIDA, INC., respectfully requests this Court to: a) enter judgment in favor of PREMIER PLASTERING OF CENTRAL FLORIDA, INC.; b) deny the relief sought in the Amended Complaint in its entirety; c) award PREMIER PLASTERING OF CENTRAL, INC., its costs pursuant to section 57.041, Florida Statutes; and d) grant PREMIER PLASTERING OF CENTRAL, INC. such other and further relief as this Court deems just and proper. {INTENTIONALLY LEFT BLANK} CERTIFICATE OF SERVICE I] HEREBY CERTIFY that on the 21% day of June, 2021, I electronically filed the foregoing with the Clerk of the Court by using the E-Filing Portal, which will send a notice of electronic filing to all parties on the attached Service List. MOODY & GRAF, P.A. Le Cheley G WMouudy, Gr CHESLEY G. MOODY, JR., ESQ Florida Bar No.: 544426 MAI M. LE, ESQ. Florida Bar No.: 112592 1101 N. Lake Destiny Rd., Suite 200 Maitland, FL 32751 Telephone: (407) 755-6900 Facsimile: (407) 755-6913 cmoody@moodygraf.com mile@moodygraf.com kpollak@moodygraf.cor tdixon@moodyegraf.com Counsel for Premier Plastering of Central Florida, Inc. SERVICE LIST Allana D.E. Smith, Esq. Lannie D. Hough, Jr., Esq. Evan J. Small, Esq. Robin H. Leavengood, Esq. Nicholas B. Vargo, Esq. James Michael Walls, Esq. Phillip E. Joseph, Esq. Brian C. Porter, Esq. BALL JANIK LLP CARLTON FIELDS, P.A. 201 East Pine Street, Suite 600 4221 W. Boy Scout Blvd. Orlando, FL 32801 Tampa, FL 33607 Phone: 407.455.5664 Phone: 813.223.7000 pjosep! alljanik.com lhough@ecarltonfields.com esmall@balljanik.com nbonilla@calrtonfields.com nvargo@balljanik.com ywilliams@carltonfields.com smith@balljanik.com rleavengood@carltonfields.com ypalmer@ballianik.com brosa@carltonfields.com cbetancourt@balljanik.com bporter@carltonfields.com nwise@ballianik.com jcostello@carltonfields.com dmmiksell@balljanik.com mwalls@carltonfields.com orlandodocket@balljanik.com Counsel for Royal Oak Homes, LLC Counsel for Plaintiff Thamir A.R. Kaddouri, Jr., Esq. Paul Sidney Elliott, Esq. Penelope T. Rowlett, Esq. P.O. Box 274204 Beth Ann Tobey, Esq. Tampa, FL 33688 LAW OFFICE OF THAMIR A.R. KADDOURI, Phone: 813.265.1314 JR. P.A. pse@psejd.com 3220 West Cypress Street Tampa, FL 33607 Co-Counsel for Hugh MacDonald Construction, Phone: 813.879.5752 Ine. Thamir.kaddouri@tampalaw.com service(@tampalaw.cory Denise M. Anderson, Esq. beth.tobey@tampalaw.com Ashley M. Mattingly, Esq. Counsel for Imperial Building Corporation BUTLER WEIHMULLER KATZ CRAIG LLP 400 N. Ashley Dr., Suite 2300 Tampa, FL 33602 Phone: 813.281.1900 danderson@butler.legal mattingly@butler.legal . acobs(@butler.legal jorge@butler legal Co-Counsel for Hugh MacDonald Construction, Ine. Peter J. Kapsales, Esq. Denise M. Anderson, Esq. Margaret M. Efta, Esq. Kate F. Gaset, Esq. MILNE LAW GROUP, P.A. BUTLER WEIHMULLER KATZ CRAIG LLP 301 E. Pine Street, Suite 525 400 N. Ashley Drive, Suite 2300 Orlando, FL 32801 Tampa, FL 33602 Phone: 321.558.7700 danderson@butler legal pkapsales@milnelawgroup.com kgaset@butler. legal mefta@ nelawgroup.com dwhite@butler.legal eservice@milnelawgroup.com krieck@pbutler.legal Counsel for Weathermaster Building Products, jorge@butler legal Inc. Counsel for Don King’s Concrete, Inc. Timothy C. Ford, Esq. Jayne Ann Pittman, Esq. Andrew E. Holway, Esq. Natalie C. Fischer, Esq. HILL WARD HENDERSON CONROY SIMBERG 101 E. Kennedy Blvd., Suite 3700 Two South Orange Ave., Suite 300 Tampa, FL 33602 Orlando, FL 32801 Tim.ford@hwhlaw.com Phone: 407.649.9797 Andrew, holway@hwhlaw.com & erviceor \@conroysimberg. com Tracy.coale@hwhlaw.com jpittman@conroysimberg.com Kathy.wernsing@hwhlaw.com mimaitland. conroysimberg.com Derrick.calandra@hwhlaw.com nfischer@conroysimberg.com Counsel for Weintraub Inspections & Forensics, Counsel for Advanced Wrapping and Concrete Inc. n/k/a Weintraub Engineering and Solutions of Central Florida, Inc. Inspections, Inc. Bruce R. Calderon, Esq. Eric J. Netcher, Esq. D. Bryan Hall, Esq. WALKER, REVELS, GRENINGER & Audra R. Creech, Esq. NETCHER PLLC MILBER MAKRIS PLOUSADIS & SEIDEN, 189 S. Orange Ave., Suite 1830 LLP Orlando, FL 32801 1900 NW Corporate Blvd. Phone: 407.789.1830 East Tower, Suite 440 snetcher@wren-law.con Boca Raton, FL 33431 hpayesh@wren-law.com Phone: 561.994.7310 Counsel for All Glass Installation Corp. bealderon@milbermakris.com dhili@milbermakris.com acreech@milbermakris.com SCTE COM OCT Mas. LOM kmedowell@milbermakris.com Counsel for Brown + Company Architecture, Inc. S. Scott Ross, Esq. Vicki Lambert, Esq. GROELLE & SALMON, P.A. Alec Masson, Esq. 1715 N. Westshore Blvd., Suite 320 LUKS, SANTANIELLO, PETRILLO & COHEN Tampa, FL 33607 201 S. Orange Ave., Suite 400 Phone: 813.846.7200 Orlando, FL 32801 gstcourtdocs@gspalaw.com Phone: 407.540.9170 SrOss: @gspala wW.com Luksorl-pleadings@|s-law.com cebanks@gspalaw.com amason@insurancedefense.net meoleman@gspalaw.com ipestonit@insurancedefense.net Counsel for Helberg Enterprises, LLC Co-Counsel for Casey Hawkins Glass, Inc. Michael D. Ruel, Esq. Kyle NeNeal, Esq. GALLOWAY, JOHNSON, TOMPKINS, BURR & SMITH, P.L.C. 400 N. Ashley Dr., Suite 1000 Tampa, FL 33602 Phone: 813.977.1200 tampaservbice@gallowaylawfirm.com mruel@gallowaylawfirm.com kmeneal@gallowaylawfirm.com Co-Counsel for Casey Hawkins Glass, Inc. Andrew T. Marshall, Esq. Bruce R. Calderon, Esq. HAMILTON, PRICE & MARSHALL, P.A. D. Bryan Hill, Esq. 2400 Manatee Ave. W. Audra R. Creech, Esq. Bradenton, FL 34205 MILBER MAKRIS PLOUSADIS & SEIDEN, Phone: 941.748.0550 LLP andrew@hamiltonpricelaw.com 1900 NW Corporate Blvd. nancy(@hamultonpricelaw.com East Tower, Suite 440 kelsey@hamiltonpricelaw.com Boca Raton, FL 33431 Counsel for T&M Construction of Sanford, Inc. Phone: 561.994.7310 bealderon@milbermakris.com dh milbermak Om acrece: CHMAaKTIS.COM Counsel for Brown + Company Architecture, Inc. Cole J. Copertino, Esq. Joseph L. Zollner, Esq. WRIGHT, FULFORD, MOORHEAD & BROWN. LAW OFFICE OF AMY L. WARPINSKI P.A. P.O, Box 7217 505 Maitland Blvd., Suite 1000 London, KY 40742 Altamonte Springs, FL 32701 floridacdiegalmail@libertymutual.com Phone: 407.425.0234 joseph.zollner@libertymutual.com copertino@wimblaw.coim Counsel for Lios Concrete Corp cbraungart@wfmblaw.com twilliams@wfmblaw.com Counsel for Well Hung Windows & Doors