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Filing # 109091872 E-Filed 06/18/2020 06:45:52 PM
IN THE COUNTY COURT OF THE
11TH JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
951 HARBOR DRIVE, LLC, a Florida limited CASE NO. 2017-014568-CA-01
liability company,
Plaintiffs,
v.
SD CONSTRUCTION, LLC, a Florida limited
liability company, MERICK ROOFING, INC. a
Florida corporation, and N. OSCAR
GONZALEZ, E., an individual;
Defendants,
______________________________________/
SD CONSTRUCTION, LLC. a Florid limited
liability company,
Defendant/Cross-Plaintiff,
v.
MERICK ROOFING, INC., a Florida profit
corporation.
Defendant, Cross-Defendant,
_______________________________________/
SD CONSTRUCTION, LLC a Florida limited
liability company,
Third Party Plaintiff,
v.
AA PROFESSIONAL TILE & MARBLE, INC.,
a Florida profit corporation; LARRES
ENTERPRISE, INC., a Florida profit
corporation; LIBERTY DOOR AND
SERVICES, CORP., a Florida profit corporation;
VITRO GLASS, INC., a Florida profit
corporation;
Third-Party Defendants.
_______________________________________/
SD CONSTRUCTION, LLC’S RESPONSE IN OPPOSITION TO PLAINTIFF’S
MOTION TO DISMISS THIRD-PARTY DEFENDANTS OR ALTERNATIVELY TO
SEVER THIRD-PARTY CLAIMS
Defendant SD CONSTRUCTION, LLC (“SD Construction”) by and through undersigned
counsel hereby files its Response in Opposition to Plaintiff 951 HARBOR DRIVE, LLC’s
(“Plaintiff”) Motion to Dismiss Third-Party Defendants or Alternatively to Sever Third-Party
Claims (“Motion”) and in support thereof states as follows:
1. All claims, including the third-party complaint and crossclaim, and defenses in this
case arise from a single set of intertwined facts, involving the construction of a single-family
residence located at 951 Harbor Drive, Key Biscayne, Florida 33149 (“the subject residence”).
2. Plaintiff owns the subject residence and brought this construction defect claim
against SD Construction, the roofing subcontractor (“Merrick”), and the engineer.
3. Plaintiff has sued SD Construction, Merrick, and the engineer for negligence.
4. Plaintiff has released the engineer from the litigation.
5. SD Construction has brought a crossclaim against Merrick and a third-party
complaint against four other subcontractors.
6. After numerous unsuccessful attempts at serving three of the third-party
defendants, SD Construction has filed a motion to serve the secretary of state to accept service on
behalf of the remaining subcontracts. Meanwhile, SD Construction has successfully served one of
its subcontractors and Merrick.
7. If the Court were to grant Plaintiff’s Motion, it would create the risk of inconsistent
verdicts by two different triers of fact. See Rocket Group, LLC v. Jatib, 174 So. 3d 576 (Fla. 4th
DCA 2015). Importantly, Florida courts have consistently held that “it is improper to sever a
counterclaim and affirmative defenses from the plaintiff’s claim, when the facts underlying the
2
claims of the respective parties are inextricably interwoven.” Minty v. Meister Financialgroup,
Inc. 97 So. 3d 926 (Fla. 4th DCA 2012) (quoting Maris Distrib. Co. v. Anheuser-Busch, Inc., 710
So. 2d 1022, 1024 (Fla. 1st DCA 1998).
8. Additionally, throughout 2018 – 2019, the court docket remaining largely quiet.
9. SD Construction served Plaintiff with interrogatory requests on March 29, 2019.
10. Plaintiff did not answer the interrogatory requests until June 11, 2020 after SD
Construction repeatedly requested Plaintiff to answer the interrogatories.
11. While the interrogatories remained outstanding, SD Construction was pursuing
service upon the third-party defendants.
12. Finally, Plaintiff does not have standing to quash substituted serve of process on a
third-party defendant. Kaufman v. Metro Limo Fund, Inc., 503 So. 2d 967 (Fla. 3d DCA 1987).
13. Accordingly, Plaintiff’s Motion should be denied.
WHEREFORE, SD Construction hereby requests this Honorable Court deny Plaintiff’s
Motion and grant such further relief this Court deems just and proper.
RESNICK & LOUIS, P.C.
Counsel for SD Construction, LLC
444 Brickell Avenue, Suite 300
Miami, FL 33131
Telephone and Facsimile: 305-428-2711
Primary e-mail:rsquire@rlattomeys.com
Secondary e-mails:glutz@rlattorneys.com
kolesky@rlattorneys.com
lhernandez@rlattorneys.com
maquino@rlattorneys.com
By: Isl GEOFFREY R. LUTZ
ROBERT J. SQUIRE, ESQ.
Florida Bar No.: 584169
GEOFFREY R. LUTZ, ESQ.
Florida Bar No.: 22737
KARA OLESKY, ESQ.
Florida Bar No. 117874
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CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
to all counsel of record on the attached Service List by electronic mail through the Florida
Court's eFiling Portal on this 18th day of June, 2020. and electronically filed the foregoing with
the Clerk by using the Florida Courts eFiling Portal.
SERVICE LIST
Eric M Sodhi , Esq. Robert J. Squire, Esq.
Joshua Spoont, Eq. Geoffrey R. Lutz, Esq.
Sodhi Spoont PLLC Kara Olesky, Esq.
1000 5th Street, Suite 218 Resnick & Louis, P.C.
Miami Beach, FL 33139 444 Brickell Avenue,
Telephone: (305) 907-7573 Suite 300
Facsimile: (305) 675-6461
Miami, FL 33131
eric@sodhispoont.corn
Office & Facsimile 305-428-2711
service@sodhispoont.co
rsquire@r!attorneys.corn
m
glutz@rlattorneys.com
josh@sodhispoont.com
kolesky @rlattomeys .com
Counsel for Plaintiffs lhernandez@rlattorneys.com
rnaquino@rlattomeys.com
Counsel for SD Construction, LLC
Elizabeth Y. Davies, Esq. Robert J. Alwine, Esq.
The Law Office of Jorge L. Pinon, Robert Joseph Alwine, P.A.
P.A. 1380 SW 128th Street 240 Crandon Blvd.,
Miami, FL 33186 Key Biscayne, FL 33149
Telephone: (305) 273-3901 Telephone: (305) 965-0813
e-subrnission @jplawfirrn.net Robert@robertalwine.com
elizabe th@jplawfirrn.net
Co-Counsel for SD Construction, LLC
Counsel for N. Oscar Gonzalez, P.E.
4
Preview
Filing # 109091872 E-Filed 06/18/2020 06:45:52 PM IN THE COUNTY COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA 951 HARBOR DRIVE, LLC, a Florida limited CASE NO. 2017-014568-CA-01 liability company, Plaintiffs, v. SD CONSTRUCTION, LLC, a Florida limited liability company, MERICK ROOFING, INC. a Florida corporation, and N. OSCAR GONZALEZ, E., an individual; Defendants, ______________________________________/ SD CONSTRUCTION, LLC. a Florid limited liability company, Defendant/Cross-Plaintiff, v. MERICK ROOFING, INC., a Florida profit corporation. Defendant, Cross-Defendant, _______________________________________/ SD CONSTRUCTION, LLC a Florida limited liability company, Third Party Plaintiff, v. AA PROFESSIONAL TILE & MARBLE, INC., a Florida profit corporation; LARRES ENTERPRISE, INC., a Florida profit corporation; LIBERTY DOOR AND SERVICES, CORP., a Florida profit corporation; VITRO GLASS, INC., a Florida profit corporation; Third-Party Defendants. _______________________________________/ SD CONSTRUCTION, LLC’S RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION TO DISMISS THIRD-PARTY DEFENDANTS OR ALTERNATIVELY TO SEVER THIRD-PARTY CLAIMS Defendant SD CONSTRUCTION, LLC (“SD Construction”) by and through undersigned counsel hereby files its Response in Opposition to Plaintiff 951 HARBOR DRIVE, LLC’s (“Plaintiff”) Motion to Dismiss Third-Party Defendants or Alternatively to Sever Third-Party Claims (“Motion”) and in support thereof states as follows: 1. All claims, including the third-party complaint and crossclaim, and defenses in this case arise from a single set of intertwined facts, involving the construction of a single-family residence located at 951 Harbor Drive, Key Biscayne, Florida 33149 (“the subject residence”). 2. Plaintiff owns the subject residence and brought this construction defect claim against SD Construction, the roofing subcontractor (“Merrick”), and the engineer. 3. Plaintiff has sued SD Construction, Merrick, and the engineer for negligence. 4. Plaintiff has released the engineer from the litigation. 5. SD Construction has brought a crossclaim against Merrick and a third-party complaint against four other subcontractors. 6. After numerous unsuccessful attempts at serving three of the third-party defendants, SD Construction has filed a motion to serve the secretary of state to accept service on behalf of the remaining subcontracts. Meanwhile, SD Construction has successfully served one of its subcontractors and Merrick. 7. If the Court were to grant Plaintiff’s Motion, it would create the risk of inconsistent verdicts by two different triers of fact. See Rocket Group, LLC v. Jatib, 174 So. 3d 576 (Fla. 4th DCA 2015). Importantly, Florida courts have consistently held that “it is improper to sever a counterclaim and affirmative defenses from the plaintiff’s claim, when the facts underlying the 2 claims of the respective parties are inextricably interwoven.” Minty v. Meister Financialgroup, Inc. 97 So. 3d 926 (Fla. 4th DCA 2012) (quoting Maris Distrib. Co. v. Anheuser-Busch, Inc., 710 So. 2d 1022, 1024 (Fla. 1st DCA 1998). 8. Additionally, throughout 2018 – 2019, the court docket remaining largely quiet. 9. SD Construction served Plaintiff with interrogatory requests on March 29, 2019. 10. Plaintiff did not answer the interrogatory requests until June 11, 2020 after SD Construction repeatedly requested Plaintiff to answer the interrogatories. 11. While the interrogatories remained outstanding, SD Construction was pursuing service upon the third-party defendants. 12. Finally, Plaintiff does not have standing to quash substituted serve of process on a third-party defendant. Kaufman v. Metro Limo Fund, Inc., 503 So. 2d 967 (Fla. 3d DCA 1987). 13. Accordingly, Plaintiff’s Motion should be denied. WHEREFORE, SD Construction hereby requests this Honorable Court deny Plaintiff’s Motion and grant such further relief this Court deems just and proper. RESNICK & LOUIS, P.C. Counsel for SD Construction, LLC 444 Brickell Avenue, Suite 300 Miami, FL 33131 Telephone and Facsimile: 305-428-2711 Primary e-mail:rsquire@rlattomeys.com Secondary e-mails:glutz@rlattorneys.com kolesky@rlattorneys.com lhernandez@rlattorneys.com maquino@rlattorneys.com By: Isl GEOFFREY R. LUTZ ROBERT J. SQUIRE, ESQ. Florida Bar No.: 584169 GEOFFREY R. LUTZ, ESQ. Florida Bar No.: 22737 KARA OLESKY, ESQ. Florida Bar No. 117874 3 CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to all counsel of record on the attached Service List by electronic mail through the Florida Court's eFiling Portal on this 18th day of June, 2020. and electronically filed the foregoing with the Clerk by using the Florida Courts eFiling Portal. SERVICE LIST Eric M Sodhi , Esq. Robert J. Squire, Esq. Joshua Spoont, Eq. Geoffrey R. Lutz, Esq. Sodhi Spoont PLLC Kara Olesky, Esq. 1000 5th Street, Suite 218 Resnick & Louis, P.C. Miami Beach, FL 33139 444 Brickell Avenue, Telephone: (305) 907-7573 Suite 300 Facsimile: (305) 675-6461 Miami, FL 33131 eric@sodhispoont.corn Office & Facsimile 305-428-2711 service@sodhispoont.co rsquire@r!attorneys.corn m glutz@rlattorneys.com josh@sodhispoont.com kolesky @rlattomeys .com Counsel for Plaintiffs lhernandez@rlattorneys.com rnaquino@rlattomeys.com Counsel for SD Construction, LLC Elizabeth Y. Davies, Esq. Robert J. Alwine, Esq. The Law Office of Jorge L. Pinon, Robert Joseph Alwine, P.A. P.A. 1380 SW 128th Street 240 Crandon Blvd., Miami, FL 33186 Key Biscayne, FL 33149 Telephone: (305) 273-3901 Telephone: (305) 965-0813 e-subrnission @jplawfirrn.net Robert@robertalwine.com elizabe th@jplawfirrn.net Co-Counsel for SD Construction, LLC Counsel for N. Oscar Gonzalez, P.E. 4