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Filing # 60198758 E-Filed 08/09/2017 05:41:11 PM
IN THE CIRCUIT COURT OF THE
ELEVENTH 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,
/
DEFENDANT’S, SD CONSTRUCTION, LLC, ANSWER AND AFFIRMATIVE
DEFENSES TO PLAINTIFF’S, 951 HARBOR DRIVE, COMPLAINT
Defendant, SD CONSTRUCTION, LLC (“SD”), by and through its undersigned counsel,
and pursuant to Florida Rule of Civil Procedure 1.140, hereby files its Answer and Affirmative
Defenses to Plaintiffs, 951 HARBOR DRIVE, LLC (“Plaintiff’ or “Owner’), Complaint as
follows
PARTIES, JURISDICTION, AND VENUE
1 SD admits only that Plaintiff has attempted to allege an action for monetary
damages in excess of the jurisdictional threshold of this Court, but otherwise denies the
substantive merits of any such causes of action.
2. Without knowledge, therefore denied
3 SD admits only that it is a Florida limited liability company having its principal
place of business located at 328 Crandon Blvd., Suite 226, Key Biscayne, Florida, 33149 in
Miami-Dade County, Florida, and that SD performed work on the Residence pursuant to an951 Harbor Drive, LLC v. SD Construction, LLC, et al.
Case No.: 2017-014568-CA-01
Page 2 of 15
agreement. The terms of the agreement define the duties and obligations of the parties and
otherwise SD denies the remaining allegations in Paragraph 3 of the Complaint.
4. Without knowledge, therefore denied.
5. Without knowledge, therefore denied.
6 SD admits only that venue is proper in Miami-Dade County, but otherwise denies
the substantive merits of any such causes of action
7 Without knowledge, therefore denied.
8. Denied
GENERAL ALLEGATIONS
9. SD admits only that SD performed work on the Residence pursuant to an
agreement. The terms of the agreement define the duties and obligations of the parties and
otherwise SD denies the remaining allegations in Paragraph 9 of the Complaint
10. Without knowledge, therefore denied.
11. Without knowledge, therefore denied
12. Without knowledge, including all subparts, therefore denied.
13. SD asserts that Paragraph 13 of the Complaint contains a statement to which no
response is required. To the extent that a response is required, SD denies the allegations in
Paragraph 13.
The Exterior Stairs
14. SD asserts that Paragraph 14 of the Complaint contains statements to which no
response is required. To the extent that a response is required, SD denies the allegations in
Paragraph 14.
15 Without knowledge, therefore denied.951 Harbor Drive, LLC v. SD Construction, LLC, et al.
Case No.: 2017-014568-CA-01
Page 3 of 15
16. Without knowledge, therefore denied.
The Roof System and Punctures
17. Without knowledge, therefore denied.
18. SD admits only that it performed work on the Project pursuant to an agreement.
The terms of the agreement define the duties and obligations of the parties and otherwise SD
denies the remaining allegations in Paragraph 18 of the Complaint.
19. SD asserts that Paragraph 19 of the Complaint contains statements to which no
response is required. To the extent that a response is required, SD denies the allegations in
Paragraph 19.
20. Without knowledge, therefore denied.
21. Denied as to SD, otherwise without knowledge, therefore denied.
22. — SD asserts that Paragraph 22 of the Complaint contains statements to which no
response is required. To the extent that a response is required, SD denies the allegations in
Paragraph 22
23. SD asserts that Paragraph 23 of the Complaint contains statements to which no
response is required. To the extent that a response is required, SD denies the allegations in
Paragraph 23
24. SD asserts that Paragraph 24 of the Complaint contains statements to which no
response is required. To the extent that a response is required, SD denies the allegations in
Paragraph 24
25 Denied as to SD, otherwise without knowledge, therefore denied.
26. Denied as to SD, otherwise without knowledge, therefore denied
27 Denied951 Harbor Drive, LLC v. SD Construction, LLC, et al.
Case No.: 2017-014568-CA-01
Page 4 of 15
28 Denied
29. Denied.
30. Denied
31 SD asserts that Paragraph 31 of the Complaint contains statements to which no
response is required. To the extent that a response is required, SD denies the allegations in
Paragraph 31
32. Denied.
The Skylights
33. Denied.
34. SD asserts that Paragraph 34 of the Complaint contains statements to which no
response is required. To the extent that a response is required, SD denies the allegations in
Paragraph 34.
35 SD asserts that Paragraph 35 of the Complaint contains statements to which no
response is required. To the extent that a response is required, SD denies the allegations in
Paragraph 35.
36. Denied.
37. Without knowledge, therefore denied.
38. Without knowledge, therefore denied
39. SD asserts that Paragraph 39 of the Complaint contains legal conclusions to which
no response is required. To the extent that a response is required, SD denies the allegations in
Paragraph 39 and the substantive merits of any such causes of action
///
//1951 Harbor Drive, LLC v. SD Construction, LLC, et al.
Case No.: 2017-014568-CA-01
Page 5 of 15
COUNTI
(Negligence against SD)
40. SD reasserts and re-allege its answers to Paragraphs 1 through 39, above, as if
fully set forth herein.
41 SD admits only that it performed work on the Project pursuant to an agreement.
The terms of the agreement define the duties and obligations of the parties and otherwise SD
denies the remaining allegations in Paragraph 41 of the Complaint.
42. SD asserts that Paragraph 42 of the Complaint contains legal conclusions to which
no response is required. To the extent that a response is required, SD denies the allegations in
Paragraph.
43 Denied, including all subparts a through f.
44. Denied.
COUNTS I & Il
(Against Parties other than SD)
45 to 54. Counts II and III of the Complaint are not directed towards SD, so no
response is required. However, SD adopts and re-alleges its answers to Paragraphs 1 through
39, above, as if fully set forth herein as incorporated by the Plaintiff in Paragraphs 45 through
54. To the extent that any other response is required or any allegations implicate or are directed
towards SD in any way, SD denies all of the allegations contained in Paragraphs 45 through 54
of the Complaint.
55. Any allegation not specifically admitter herein is deemed denied.
AFFIRMATIVE DEFENSES
As separately and distinctly enumerated affirmative defenses to the Complaint filed by
Plaintiff, SD avers951 Harbor Drive, LLC v. SD Construction, LLC, et al.
Case No.: 2017-014568-CA-01
Page 6 of 15
First Affirmative Defense
(Failure to State a Cause of Action)
56. SD affirmatively states that the count alleged by the Plaintiff for negligence
against SD fails to state a cause of action under Florida law.
Second Affirmative Defense
(Conditions Precedent)
57. SD affirmatively states that Plaintiff has failed to meet or satisfy any and all
conditions precedent to the filing of this action, and therefore, Plaintiff is barred in whole, or in
part, from any recovery.
Third Affirmative Defense
(Proximate Cause)
58 SD affirmatively states that any actions and/or inactions by SD was not the cause
and/or proximate cause for any injuries and/or damages alleged by Plaintiff and therefore should
not be held liable for any of the claimed injuries and/or damages.
Fourth Affirmative Defense
(Inadequate Notice of Claim)
59. SD affirmatively states that Plaintiff has not provided proper and/or adequate
notice of its claim(s) and/or SD’s alleged actions and/or inactions for which the Plaintiff seeks
recovery of damages.
Fifth Affirmative Defense
(Doctrine of Avoidable Consequences/Failure to Mitigate Damages/Economic Waste)
60. The doctrine of avoidable consequences, commonly referred to as a duty to
mitigate damages, prevents a party from recovering those damages inflicted by a wrongdoer
which the injured party could have avoided without undue risk, burden, or humiliation. Graphic
Assocs., Inc. v. Riviana Rest. Corp., 462 So. 2d 1011, 1014 (Fla. 4th DCA 1984). See also Sys.951 Harbor Drive, LLC v. SD Construction, LLC, et al.
Case No.: 2017-014568-CA-01
Page 7 of 15
Components Corp. v. Fla. Dep’t of Transp., 14 So.3d 967 (Fla. 2009). Here, upon information
and belief, Plaintiff has failed to reasonably avoid and/or mitigate its damages, if any, and/or
engaged in economic waste, and any alleged damage should be reduced accordingly. Discovery
is ongoing and may or will reveal further opportunities Plaintiff had to reasonably avoid, reduce
its damages and/or engaged in economic waste. SD states that damages alleged herein, if any, are
barred or reduced to the extent said damages were incurred as a result of Plaintiffs failure to
avoid, mitigate damages and/or economic waste.
Sixth Affirmative Defense
(Legal Cause — Plaintiff)
61 SD affirmatively states that Plaintiff, whom SD had no control over or legal
responsibility for, was either the sole legal cause or was comparatively at fault for any alleged
damages. Therefore, Plaintiff's claims are barred and/or any recovery for the alleged damages
should be reduced by the percentage of Plaintiff's actions, inactions, or faults attributed to the
alleged damages. Further, Plaintiff's claims are barred due to alteration and/or modification of
the original work of the contractors and subcontractors.
Seventh Affirmative Defense
(Legal Cause — Third Parties)
62. SD affirmatively state that third-parties, whom SD had no control over or legal
responsibility for, were either the sole legal cause or were comparatively at fault for any alleged
damage. Therefore, Plaintiff's claims are barred and/or any recovery for the alleged damages
should be reduced by the percentage of the third parties’ actions, inactions, or faults attributed to
the alleged damages. Further, Plaintiffs claims are barred due to the third parties’ alteration
and/or modification of the original work of the contractors and subcontractors.
///951 Harbor Drive, LLC v. SD Construction, LLC, et al.
Case No.: 2017-014568-CA-01
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Eighth Affirmative Defense
(Comparative Fault/Fault of Others/Fabre Defendants)
63 SD affirmatively states that, although it has no liability to Plaintiff, any liability
(fault) found on its part, and, consequently any damages awarded in favor of Plaintiff, are subject
to the comparative fault provisions of Florida Statute §768.81 and Fabre v. Marin, 623 So. 2d
1182 (Fla. 1993) and its progeny. SD shall not be found liable in the entry of judgment herein for
more than their proportionate share of any economic and non-economic damages awarded by the
jury to Plaintiff in relation to all other responsible (at fault) parties, including Plaintiff, and non-
parties. The responsible parties and non-parties include
1. Plaintiff, 951 HARBOR DRIVE, LLC;
2. Joaquin A. Ribadeniera Quevedo;
3. Maria D. Gomez Mendizabal;
4, MERICK ROOFING, INC.;
5. N. OSCAR GONZALEZ, P.E.;
6. LG. Group, Inc.;
7. Eastern Engineering Group Company;
The acts and/or omissions of the Fabre defendants set forth above may have been
breaches of applicable duties of care that caused Plaintiff the damages, if any, complained of in
this case. SD reserves the right under Florida Statute §768.81 to amend this affirmative defense
in order to include additional at-fault parties and non-parties and/or more detailed allegations as
additional information becomes available through discovery
///
//1951 Harbor Drive, LLC v. SD Construction, LLC, et al.
Case No.: 2017-014568-CA-01
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Ninth Affirmative Defense
(Superseding and Intervening Cause)
64. SD affirmatively states that it is not liable to Plaintiff because the acts, conduct
and/or omissions of others (See SD’s Eighth Affirmative Defense above) and/or any persons or
entities not a party to this lawsuit, constitute intervening and superseding proximate causes of
Plaintiff's alleged damages, including the negligence of those parties and non-parties identified
in SD’s Eighth Affirmative Defense, including, but not limited to, the Fabre defendants set forth
above.
Tenth Affirmative Defense
(Spearin Doctrine)
65 SD affirmatively statse that the subject work performed by SD was done in
accordance with plans and specifications provided to it by others, specifically Plaintiff, N. Oscar
Gonzalez, P.E., I.G. Group, Inc., and/or Eastern Engineering Group Company, and/or Plaintiff,
N. Oscar Gonzalez, P.E., LG. Group, Inc., and/or Eastern Engineering Group Company’s
principals, directors, agents, employees, or independent contractors, or not provided to its by
others, specifically Plaintiff, N. Oscar Gonzalez, P.E., IG. Group, Inc., and/or Eastern
Engineering Group Company, and/or Plaintiff, N. Oscar Gonzalez, P.E., I.G. Group, Inc., and/or
Eastern Engineering Group Company’s principals, directors, agents, employees, or independent
contractors, and any damages alleged by Plaintiff, are solely the result of insufficiencies or
defects in those plans or specifications provided to SD. As such, the Plaintiff's claims are barred
and/or limited due to the Spearin Doctrine. United States v. Spearin, 248 U.S. 132 (1918).
///
///
//1951 Harbor Drive, LLC v. SD Construction, LLC, et al.
Case No.: 2017-014568-CA-01
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Eleventh Affirmative Defense
(Seibert Doctrine)
66. SD affirmatively states that the work performed by SD was done in accordance
with instructions and recommendations, complied with all applicable codes and statutes per the
regulatory authorities with jurisdiction on the Project, as such, Plaintiff's claims are barred
pursuant to Florida Statute §553.84 and the Seibert Doctrine. Edward J. Seibert, A..A., Architect
and Planner, P.A. v. Bayport Beach and Tennis Club Association, Inc., 573 So. 2d 889 (Fla. 2d
DCA 1990).
Twelfth Affirmative Defense
(Betterment)
67. SD affirmatively states that any damages sought by Plaintiff that were not part of
the original design constitute improvements and betterment, to which Plaintiff is not entitled to
recover from SD, if at all.
Thirteenth Affirmative Defense
(Spoliation of Evidence)
68. SD affirmatively states that Plaintiff, other parties to this lawsuit, and/or other
persons and/or entities not a party to this lawsuit have destroyed, lost, spoiled, and/or otherwise
failed to properly maintain the key evidence in this matter, whether intentionally or negligently,
in connection with, among other things, maintenance, repairs, and/or investigations at the Project
thereby barring Plaintiff's recovery in whole or in part. To the extent the Plaintiff is claiming
damages resulting from evidence that has been destroyed, lost, spoiled, and/or otherwise failed to
be properly maintained, SD has suffered great prejudice.
///
//1951 Harbor Drive, LLC v. SD Construction, LLC, et al.
Case No.: 2017-014568-CA-01
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Fourteenth Affirmative Defense
(Economic Loss Doctrine/Gist of the Action Doctrine)
69. SD affirmatively states that Plaintiff's claims are barred by the economic loss
doctrine and/or the gist of the action doctrine. SD’s work has not caused personal injury or
damage to property other than the Project itself, if at all
Fifteenth Affirmative Defense
(Standard of Care)
70. SD affirmatively states that that any work performed and/or products supplied by
SD was in keeping with the appropriate standard of care of other similarly situated entities,
therefore SD cannot be held liable for the damages, if any, alleged by Plaintiff.
Sixteenth Affirmative Defense
(Exaggerated/Speculative Damages)
71. SD affirmatively states that Plaintiff's claims are barred to the extent that any
alleged damages are exaggerated, unnecessary, unreasonable, and/or not casually related to SD,
speculative, excessive, remote, contingent, prospective, uncertain, improbable, not reasonably
ascertainable, unforeseeable, and were not within the contemplation of the parties to their
respective contracts and/or agreements at the time they were entered or otherwise, and do not
logically, natural, probably, or proximately flow from any alleged breach thereof.
Seventeenth Affirmative Defense
(Set-off)
72. SD affirmatively states that any recovery by Plaintiff must be reduced or set-off to
the extent of payment previously or hereafter received by Plaintiff from others for payment of
and/or settlement of the cause of action alleged. Any monies paid by other defendants, insurers,
collateral sources of indemnity, and/or any persons or entities who are not a party to this suit
reduces the Plaintiff's entitlement to damages from SDs, if any, as Plaintiff cannot twice recover951 Harbor Drive, LLC v. SD Construction, LLC, et al.
Case No.: 2017-014568-CA-01
Page 12 of 15
for damages and cannot recover more than the pro-rata share of a defendant’s determined fault
contribution to an economic loss.
Eighteenth Affirmative Defense
(Failure to Maintain / Properly Construct / Make Timely Repairs)
73 SD affirmatively states that the subject property was misused, abused, neglected
and/or not maintained by Plaintiff and/or third parties after SD completed its work, thus any
resulting damage relating to SD’s work is due to poor maintenance or misuse, abuse and or
neglect of the subject premises. To the extent that Plaintiff and/or third parties failed to properly
construct, failed to properly maintain the subject property, and/or make timely and appropriate
repairs, so as to cause and/or contribute to any and/or all damages alleged by Plaintiff, then
Plaintiff's damages must be barred and/or reduced by the percentage of fault attributable to
Plaintiff and/or third parties.
Nineteenth Affirmative Defense
(Acts of God)
74. SD affirmatively states that it performed without fault, and the damages
complained by Plaintiff were caused in whole or in part by acts of God, or force majeure, over
which no party has control or responsibility — specifically exposure to environmental elements,
including but not limited to, rain, humidity, wind, storms, hurricanes, tropical storms, high
temperatures, and sun exposure.
Twentieth Affirmative Defense
(Unjust Enrichment/ Doctrine of First Costs)
75 SD affirmatively states that Plaintiff committed unjust enrichment and should not
be entitled to recoup losses caused by making unnecessary repairs, improvements, replacements,
or betterments of the subject property, for which SD cannot be held liable and/or alleged repairs,951 Harbor Drive, LLC v. SD Construction, LLC, et al.
Case No.: 2017-014568-CA-01
Page 13 of 15
improvements, replacements, or betterments that result in economic waste. Pursuant to the
Doctrine of First Costs, Plaintiff is barred from recovering damages that exceed that for which it
contracted for.
Twenty-First Affirmative Defense
(Failure to Comply with Florida Statute Chapter 558)
76. SD affirmatively states that the Plaintiff's action is barred for failure to comply
with the statutory notice requirements of Chapter 558, Florida Statutes. For example, upon
information and belief, Plaintiff is making claims against SD for repair and/or replacement of
various building components that for which Plaintiff, any other party(ies) to this matter, and/or
any person(s) and/or entity(ies) not yet parties to this action, has(have) has not provided access to
pursuant to the requirement of Chapter 558, Florida Statutes.
Twenty-Second Affirmative Defense
(Ordinary and General Purpose)
77. SD affirmatively states that subject property involved in this litigation was
reasonably fit for the ordinary or general purpose intended.
Twenty-Third Affirmative Defense
(Failure to Joint Indispensable Parties)
78 SD affirmatively states that Plaintiff has failed to join all necessary and/or
indispensable parties.
Twenty-Fourth Affirmative Defense
(Waiver and Estoppel)
79. SD affirmatively states that Plaintiff's claims are barred, in whole or in part, by
the doctrine of waiver and/or estoppel because Plaintiff's conduct, actions and/or owner-directed
changes. Discovery is ongoing and may or will reveal further instances of Plaintiffs conduct,
actions and/or owner-directed changes which constitute a waiver and/or estoppel.951 Harbor Drive, LLC v. SD Construction, LLC, et al.
Case No.: 2017-014568-CA-01
Page 14 of 15
80. In addition, SD gives notice that it intends to rely on such other affirmative
defenses as may become known during the course of discovery and reserve the right to amend
and/or supplement its pleading to assert such defenses.
WHEREFORE, Defendant, SD CONSTRUCTION, LLC, having fully answered,
requests that Plaintiff, 951 HARBOR DRIVE, take nothing by reason of the Complaint against
SD CONSTRUCTION, LLC, that judgment be rendered in favor of SD CONSTRUCTION,
LLC, and for such other and further relief as this Court deems just and proper.
DEMAND FOR JURY TRIAL
Defendant, SD CONSTRUCTION, LLC, demands a jury trial on all issues triable as of
right by jury
DATED this 9th day of August, 2017.
Respectfully submitted,
Robert J. Squire, Esq.
RESNICK & LOUIS, P.C.
Counsel for SD Construction, LLC
1001 Brickell Bay Dr., Ste 2716
Miami, FL 33131
Telephone and Facsimi!
Primary e-mail
Secondary e-mails
305-432-9772
By /s/ Robert J. Squire
ROBERT J. SQUIRE, ESQ.
Florida Bar No.: 584169
VINOD R. BAJNATH
Florida Bar No.: 584169951 Harbor Drive, LLC v. SD Construction, LLC, et al.
Case No.: 2017-014568-CA-01
Page 15 of 15
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and 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 9th day of August, 2017, and electronically filed the foregoing with the
Clerk by using the Florida Courts eFiling Portal.
RESNICK & LOUIS, P.C.
By: /s/ Robert Squire
ROBERT J. SQUIRE
Florida Bar No.: 584169
SERVICE LIST
Eric M Sodhi , Esq. Robert J. Squire, Esq.
Joshua Spoont, Eq. Vinod R. Bajnath, Esq.
Sodhi Spoont PLLC
1000 Sth Street, Suite 218
Miami Beach, FL 33139
Telephone: (305) 907-7573
Facsimile: (305) 675-6461
snt.con
Counsel for Plaintiffs
Resnick & Louis, P.C
1001 Brickell Bay Drive, Suite 2716
Miami, FL, 33131
Telephone: (786) 975-1999
Facsimile: (786) 975-1999
tsquire@rlattorneys.com
Counsel for SD Construction, LLC
Elizabeth Y. Davies, Esq.
The Law Office of Jorge L. Pinon, P.A.
1380 SW 128th Street
Miami, FL 33186
Telephone: (305) 273-3901
Counsel for N. Oscar Gonzalez, P.E.
Robert J. Alwine, Esq.
Robert Joseph Alwine, P.A.
240 Crandon Blvd., Ste. 263
Key Biscayne, FL 33149
Telephone: (305) 965-0813
Co-Counsel for SD Construction, LLC
Preview
Filing # 60198758 E-Filed 08/09/2017 05:41:11 PM IN THE CIRCUIT COURT OF THE ELEVENTH 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, / DEFENDANT’S, SD CONSTRUCTION, LLC, ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S, 951 HARBOR DRIVE, COMPLAINT Defendant, SD CONSTRUCTION, LLC (“SD”), by and through its undersigned counsel, and pursuant to Florida Rule of Civil Procedure 1.140, hereby files its Answer and Affirmative Defenses to Plaintiffs, 951 HARBOR DRIVE, LLC (“Plaintiff’ or “Owner’), Complaint as follows PARTIES, JURISDICTION, AND VENUE 1 SD admits only that Plaintiff has attempted to allege an action for monetary damages in excess of the jurisdictional threshold of this Court, but otherwise denies the substantive merits of any such causes of action. 2. Without knowledge, therefore denied 3 SD admits only that it is a Florida limited liability company having its principal place of business located at 328 Crandon Blvd., Suite 226, Key Biscayne, Florida, 33149 in Miami-Dade County, Florida, and that SD performed work on the Residence pursuant to an951 Harbor Drive, LLC v. SD Construction, LLC, et al. Case No.: 2017-014568-CA-01 Page 2 of 15 agreement. The terms of the agreement define the duties and obligations of the parties and otherwise SD denies the remaining allegations in Paragraph 3 of the Complaint. 4. Without knowledge, therefore denied. 5. Without knowledge, therefore denied. 6 SD admits only that venue is proper in Miami-Dade County, but otherwise denies the substantive merits of any such causes of action 7 Without knowledge, therefore denied. 8. Denied GENERAL ALLEGATIONS 9. SD admits only that SD performed work on the Residence pursuant to an agreement. The terms of the agreement define the duties and obligations of the parties and otherwise SD denies the remaining allegations in Paragraph 9 of the Complaint 10. Without knowledge, therefore denied. 11. Without knowledge, therefore denied 12. Without knowledge, including all subparts, therefore denied. 13. SD asserts that Paragraph 13 of the Complaint contains a statement to which no response is required. To the extent that a response is required, SD denies the allegations in Paragraph 13. The Exterior Stairs 14. SD asserts that Paragraph 14 of the Complaint contains statements to which no response is required. To the extent that a response is required, SD denies the allegations in Paragraph 14. 15 Without knowledge, therefore denied.951 Harbor Drive, LLC v. SD Construction, LLC, et al. Case No.: 2017-014568-CA-01 Page 3 of 15 16. Without knowledge, therefore denied. The Roof System and Punctures 17. Without knowledge, therefore denied. 18. SD admits only that it performed work on the Project pursuant to an agreement. The terms of the agreement define the duties and obligations of the parties and otherwise SD denies the remaining allegations in Paragraph 18 of the Complaint. 19. SD asserts that Paragraph 19 of the Complaint contains statements to which no response is required. To the extent that a response is required, SD denies the allegations in Paragraph 19. 20. Without knowledge, therefore denied. 21. Denied as to SD, otherwise without knowledge, therefore denied. 22. — SD asserts that Paragraph 22 of the Complaint contains statements to which no response is required. To the extent that a response is required, SD denies the allegations in Paragraph 22 23. SD asserts that Paragraph 23 of the Complaint contains statements to which no response is required. To the extent that a response is required, SD denies the allegations in Paragraph 23 24. SD asserts that Paragraph 24 of the Complaint contains statements to which no response is required. To the extent that a response is required, SD denies the allegations in Paragraph 24 25 Denied as to SD, otherwise without knowledge, therefore denied. 26. Denied as to SD, otherwise without knowledge, therefore denied 27 Denied951 Harbor Drive, LLC v. SD Construction, LLC, et al. Case No.: 2017-014568-CA-01 Page 4 of 15 28 Denied 29. Denied. 30. Denied 31 SD asserts that Paragraph 31 of the Complaint contains statements to which no response is required. To the extent that a response is required, SD denies the allegations in Paragraph 31 32. Denied. The Skylights 33. Denied. 34. SD asserts that Paragraph 34 of the Complaint contains statements to which no response is required. To the extent that a response is required, SD denies the allegations in Paragraph 34. 35 SD asserts that Paragraph 35 of the Complaint contains statements to which no response is required. To the extent that a response is required, SD denies the allegations in Paragraph 35. 36. Denied. 37. Without knowledge, therefore denied. 38. Without knowledge, therefore denied 39. SD asserts that Paragraph 39 of the Complaint contains legal conclusions to which no response is required. To the extent that a response is required, SD denies the allegations in Paragraph 39 and the substantive merits of any such causes of action /// //1951 Harbor Drive, LLC v. SD Construction, LLC, et al. Case No.: 2017-014568-CA-01 Page 5 of 15 COUNTI (Negligence against SD) 40. SD reasserts and re-allege its answers to Paragraphs 1 through 39, above, as if fully set forth herein. 41 SD admits only that it performed work on the Project pursuant to an agreement. The terms of the agreement define the duties and obligations of the parties and otherwise SD denies the remaining allegations in Paragraph 41 of the Complaint. 42. SD asserts that Paragraph 42 of the Complaint contains legal conclusions to which no response is required. To the extent that a response is required, SD denies the allegations in Paragraph. 43 Denied, including all subparts a through f. 44. Denied. COUNTS I & Il (Against Parties other than SD) 45 to 54. Counts II and III of the Complaint are not directed towards SD, so no response is required. However, SD adopts and re-alleges its answers to Paragraphs 1 through 39, above, as if fully set forth herein as incorporated by the Plaintiff in Paragraphs 45 through 54. To the extent that any other response is required or any allegations implicate or are directed towards SD in any way, SD denies all of the allegations contained in Paragraphs 45 through 54 of the Complaint. 55. Any allegation not specifically admitter herein is deemed denied. AFFIRMATIVE DEFENSES As separately and distinctly enumerated affirmative defenses to the Complaint filed by Plaintiff, SD avers951 Harbor Drive, LLC v. SD Construction, LLC, et al. Case No.: 2017-014568-CA-01 Page 6 of 15 First Affirmative Defense (Failure to State a Cause of Action) 56. SD affirmatively states that the count alleged by the Plaintiff for negligence against SD fails to state a cause of action under Florida law. Second Affirmative Defense (Conditions Precedent) 57. SD affirmatively states that Plaintiff has failed to meet or satisfy any and all conditions precedent to the filing of this action, and therefore, Plaintiff is barred in whole, or in part, from any recovery. Third Affirmative Defense (Proximate Cause) 58 SD affirmatively states that any actions and/or inactions by SD was not the cause and/or proximate cause for any injuries and/or damages alleged by Plaintiff and therefore should not be held liable for any of the claimed injuries and/or damages. Fourth Affirmative Defense (Inadequate Notice of Claim) 59. SD affirmatively states that Plaintiff has not provided proper and/or adequate notice of its claim(s) and/or SD’s alleged actions and/or inactions for which the Plaintiff seeks recovery of damages. Fifth Affirmative Defense (Doctrine of Avoidable Consequences/Failure to Mitigate Damages/Economic Waste) 60. The doctrine of avoidable consequences, commonly referred to as a duty to mitigate damages, prevents a party from recovering those damages inflicted by a wrongdoer which the injured party could have avoided without undue risk, burden, or humiliation. Graphic Assocs., Inc. v. Riviana Rest. Corp., 462 So. 2d 1011, 1014 (Fla. 4th DCA 1984). See also Sys.951 Harbor Drive, LLC v. SD Construction, LLC, et al. Case No.: 2017-014568-CA-01 Page 7 of 15 Components Corp. v. Fla. Dep’t of Transp., 14 So.3d 967 (Fla. 2009). Here, upon information and belief, Plaintiff has failed to reasonably avoid and/or mitigate its damages, if any, and/or engaged in economic waste, and any alleged damage should be reduced accordingly. Discovery is ongoing and may or will reveal further opportunities Plaintiff had to reasonably avoid, reduce its damages and/or engaged in economic waste. SD states that damages alleged herein, if any, are barred or reduced to the extent said damages were incurred as a result of Plaintiffs failure to avoid, mitigate damages and/or economic waste. Sixth Affirmative Defense (Legal Cause — Plaintiff) 61 SD affirmatively states that Plaintiff, whom SD had no control over or legal responsibility for, was either the sole legal cause or was comparatively at fault for any alleged damages. Therefore, Plaintiff's claims are barred and/or any recovery for the alleged damages should be reduced by the percentage of Plaintiff's actions, inactions, or faults attributed to the alleged damages. Further, Plaintiff's claims are barred due to alteration and/or modification of the original work of the contractors and subcontractors. Seventh Affirmative Defense (Legal Cause — Third Parties) 62. SD affirmatively state that third-parties, whom SD had no control over or legal responsibility for, were either the sole legal cause or were comparatively at fault for any alleged damage. Therefore, Plaintiff's claims are barred and/or any recovery for the alleged damages should be reduced by the percentage of the third parties’ actions, inactions, or faults attributed to the alleged damages. Further, Plaintiffs claims are barred due to the third parties’ alteration and/or modification of the original work of the contractors and subcontractors. ///951 Harbor Drive, LLC v. SD Construction, LLC, et al. Case No.: 2017-014568-CA-01 Page 8 of 15 Eighth Affirmative Defense (Comparative Fault/Fault of Others/Fabre Defendants) 63 SD affirmatively states that, although it has no liability to Plaintiff, any liability (fault) found on its part, and, consequently any damages awarded in favor of Plaintiff, are subject to the comparative fault provisions of Florida Statute §768.81 and Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993) and its progeny. SD shall not be found liable in the entry of judgment herein for more than their proportionate share of any economic and non-economic damages awarded by the jury to Plaintiff in relation to all other responsible (at fault) parties, including Plaintiff, and non- parties. The responsible parties and non-parties include 1. Plaintiff, 951 HARBOR DRIVE, LLC; 2. Joaquin A. Ribadeniera Quevedo; 3. Maria D. Gomez Mendizabal; 4, MERICK ROOFING, INC.; 5. N. OSCAR GONZALEZ, P.E.; 6. LG. Group, Inc.; 7. Eastern Engineering Group Company; The acts and/or omissions of the Fabre defendants set forth above may have been breaches of applicable duties of care that caused Plaintiff the damages, if any, complained of in this case. SD reserves the right under Florida Statute §768.81 to amend this affirmative defense in order to include additional at-fault parties and non-parties and/or more detailed allegations as additional information becomes available through discovery /// //1951 Harbor Drive, LLC v. SD Construction, LLC, et al. Case No.: 2017-014568-CA-01 Page 9 of 15 Ninth Affirmative Defense (Superseding and Intervening Cause) 64. SD affirmatively states that it is not liable to Plaintiff because the acts, conduct and/or omissions of others (See SD’s Eighth Affirmative Defense above) and/or any persons or entities not a party to this lawsuit, constitute intervening and superseding proximate causes of Plaintiff's alleged damages, including the negligence of those parties and non-parties identified in SD’s Eighth Affirmative Defense, including, but not limited to, the Fabre defendants set forth above. Tenth Affirmative Defense (Spearin Doctrine) 65 SD affirmatively statse that the subject work performed by SD was done in accordance with plans and specifications provided to it by others, specifically Plaintiff, N. Oscar Gonzalez, P.E., I.G. Group, Inc., and/or Eastern Engineering Group Company, and/or Plaintiff, N. Oscar Gonzalez, P.E., LG. Group, Inc., and/or Eastern Engineering Group Company’s principals, directors, agents, employees, or independent contractors, or not provided to its by others, specifically Plaintiff, N. Oscar Gonzalez, P.E., IG. Group, Inc., and/or Eastern Engineering Group Company, and/or Plaintiff, N. Oscar Gonzalez, P.E., I.G. Group, Inc., and/or Eastern Engineering Group Company’s principals, directors, agents, employees, or independent contractors, and any damages alleged by Plaintiff, are solely the result of insufficiencies or defects in those plans or specifications provided to SD. As such, the Plaintiff's claims are barred and/or limited due to the Spearin Doctrine. United States v. Spearin, 248 U.S. 132 (1918). /// /// //1951 Harbor Drive, LLC v. SD Construction, LLC, et al. Case No.: 2017-014568-CA-01 Page 10 of 15 Eleventh Affirmative Defense (Seibert Doctrine) 66. SD affirmatively states that the work performed by SD was done in accordance with instructions and recommendations, complied with all applicable codes and statutes per the regulatory authorities with jurisdiction on the Project, as such, Plaintiff's claims are barred pursuant to Florida Statute §553.84 and the Seibert Doctrine. Edward J. Seibert, A..A., Architect and Planner, P.A. v. Bayport Beach and Tennis Club Association, Inc., 573 So. 2d 889 (Fla. 2d DCA 1990). Twelfth Affirmative Defense (Betterment) 67. SD affirmatively states that any damages sought by Plaintiff that were not part of the original design constitute improvements and betterment, to which Plaintiff is not entitled to recover from SD, if at all. Thirteenth Affirmative Defense (Spoliation of Evidence) 68. SD affirmatively states that Plaintiff, other parties to this lawsuit, and/or other persons and/or entities not a party to this lawsuit have destroyed, lost, spoiled, and/or otherwise failed to properly maintain the key evidence in this matter, whether intentionally or negligently, in connection with, among other things, maintenance, repairs, and/or investigations at the Project thereby barring Plaintiff's recovery in whole or in part. To the extent the Plaintiff is claiming damages resulting from evidence that has been destroyed, lost, spoiled, and/or otherwise failed to be properly maintained, SD has suffered great prejudice. /// //1951 Harbor Drive, LLC v. SD Construction, LLC, et al. Case No.: 2017-014568-CA-01 Page 11 of 15 Fourteenth Affirmative Defense (Economic Loss Doctrine/Gist of the Action Doctrine) 69. SD affirmatively states that Plaintiff's claims are barred by the economic loss doctrine and/or the gist of the action doctrine. SD’s work has not caused personal injury or damage to property other than the Project itself, if at all Fifteenth Affirmative Defense (Standard of Care) 70. SD affirmatively states that that any work performed and/or products supplied by SD was in keeping with the appropriate standard of care of other similarly situated entities, therefore SD cannot be held liable for the damages, if any, alleged by Plaintiff. Sixteenth Affirmative Defense (Exaggerated/Speculative Damages) 71. SD affirmatively states that Plaintiff's claims are barred to the extent that any alleged damages are exaggerated, unnecessary, unreasonable, and/or not casually related to SD, speculative, excessive, remote, contingent, prospective, uncertain, improbable, not reasonably ascertainable, unforeseeable, and were not within the contemplation of the parties to their respective contracts and/or agreements at the time they were entered or otherwise, and do not logically, natural, probably, or proximately flow from any alleged breach thereof. Seventeenth Affirmative Defense (Set-off) 72. SD affirmatively states that any recovery by Plaintiff must be reduced or set-off to the extent of payment previously or hereafter received by Plaintiff from others for payment of and/or settlement of the cause of action alleged. Any monies paid by other defendants, insurers, collateral sources of indemnity, and/or any persons or entities who are not a party to this suit reduces the Plaintiff's entitlement to damages from SDs, if any, as Plaintiff cannot twice recover951 Harbor Drive, LLC v. SD Construction, LLC, et al. Case No.: 2017-014568-CA-01 Page 12 of 15 for damages and cannot recover more than the pro-rata share of a defendant’s determined fault contribution to an economic loss. Eighteenth Affirmative Defense (Failure to Maintain / Properly Construct / Make Timely Repairs) 73 SD affirmatively states that the subject property was misused, abused, neglected and/or not maintained by Plaintiff and/or third parties after SD completed its work, thus any resulting damage relating to SD’s work is due to poor maintenance or misuse, abuse and or neglect of the subject premises. To the extent that Plaintiff and/or third parties failed to properly construct, failed to properly maintain the subject property, and/or make timely and appropriate repairs, so as to cause and/or contribute to any and/or all damages alleged by Plaintiff, then Plaintiff's damages must be barred and/or reduced by the percentage of fault attributable to Plaintiff and/or third parties. Nineteenth Affirmative Defense (Acts of God) 74. SD affirmatively states that it performed without fault, and the damages complained by Plaintiff were caused in whole or in part by acts of God, or force majeure, over which no party has control or responsibility — specifically exposure to environmental elements, including but not limited to, rain, humidity, wind, storms, hurricanes, tropical storms, high temperatures, and sun exposure. Twentieth Affirmative Defense (Unjust Enrichment/ Doctrine of First Costs) 75 SD affirmatively states that Plaintiff committed unjust enrichment and should not be entitled to recoup losses caused by making unnecessary repairs, improvements, replacements, or betterments of the subject property, for which SD cannot be held liable and/or alleged repairs,951 Harbor Drive, LLC v. SD Construction, LLC, et al. Case No.: 2017-014568-CA-01 Page 13 of 15 improvements, replacements, or betterments that result in economic waste. Pursuant to the Doctrine of First Costs, Plaintiff is barred from recovering damages that exceed that for which it contracted for. Twenty-First Affirmative Defense (Failure to Comply with Florida Statute Chapter 558) 76. SD affirmatively states that the Plaintiff's action is barred for failure to comply with the statutory notice requirements of Chapter 558, Florida Statutes. For example, upon information and belief, Plaintiff is making claims against SD for repair and/or replacement of various building components that for which Plaintiff, any other party(ies) to this matter, and/or any person(s) and/or entity(ies) not yet parties to this action, has(have) has not provided access to pursuant to the requirement of Chapter 558, Florida Statutes. Twenty-Second Affirmative Defense (Ordinary and General Purpose) 77. SD affirmatively states that subject property involved in this litigation was reasonably fit for the ordinary or general purpose intended. Twenty-Third Affirmative Defense (Failure to Joint Indispensable Parties) 78 SD affirmatively states that Plaintiff has failed to join all necessary and/or indispensable parties. Twenty-Fourth Affirmative Defense (Waiver and Estoppel) 79. SD affirmatively states that Plaintiff's claims are barred, in whole or in part, by the doctrine of waiver and/or estoppel because Plaintiff's conduct, actions and/or owner-directed changes. Discovery is ongoing and may or will reveal further instances of Plaintiffs conduct, actions and/or owner-directed changes which constitute a waiver and/or estoppel.951 Harbor Drive, LLC v. SD Construction, LLC, et al. Case No.: 2017-014568-CA-01 Page 14 of 15 80. In addition, SD gives notice that it intends to rely on such other affirmative defenses as may become known during the course of discovery and reserve the right to amend and/or supplement its pleading to assert such defenses. WHEREFORE, Defendant, SD CONSTRUCTION, LLC, having fully answered, requests that Plaintiff, 951 HARBOR DRIVE, take nothing by reason of the Complaint against SD CONSTRUCTION, LLC, that judgment be rendered in favor of SD CONSTRUCTION, LLC, and for such other and further relief as this Court deems just and proper. DEMAND FOR JURY TRIAL Defendant, SD CONSTRUCTION, LLC, demands a jury trial on all issues triable as of right by jury DATED this 9th day of August, 2017. Respectfully submitted, Robert J. Squire, Esq. RESNICK & LOUIS, P.C. Counsel for SD Construction, LLC 1001 Brickell Bay Dr., Ste 2716 Miami, FL 33131 Telephone and Facsimi! Primary e-mail Secondary e-mails 305-432-9772 By /s/ Robert J. Squire ROBERT J. SQUIRE, ESQ. Florida Bar No.: 584169 VINOD R. BAJNATH Florida Bar No.: 584169951 Harbor Drive, LLC v. SD Construction, LLC, et al. Case No.: 2017-014568-CA-01 Page 15 of 15 CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and 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 9th day of August, 2017, and electronically filed the foregoing with the Clerk by using the Florida Courts eFiling Portal. RESNICK & LOUIS, P.C. By: /s/ Robert Squire ROBERT J. SQUIRE Florida Bar No.: 584169 SERVICE LIST Eric M Sodhi , Esq. Robert J. Squire, Esq. Joshua Spoont, Eq. Vinod R. Bajnath, Esq. Sodhi Spoont PLLC 1000 Sth Street, Suite 218 Miami Beach, FL 33139 Telephone: (305) 907-7573 Facsimile: (305) 675-6461 snt.con Counsel for Plaintiffs Resnick & Louis, P.C 1001 Brickell Bay Drive, Suite 2716 Miami, FL, 33131 Telephone: (786) 975-1999 Facsimile: (786) 975-1999 tsquire@rlattorneys.com Counsel for SD Construction, LLC Elizabeth Y. Davies, Esq. The Law Office of Jorge L. Pinon, P.A. 1380 SW 128th Street Miami, FL 33186 Telephone: (305) 273-3901 Counsel for N. Oscar Gonzalez, P.E. Robert J. Alwine, Esq. Robert Joseph Alwine, P.A. 240 Crandon Blvd., Ste. 263 Key Biscayne, FL 33149 Telephone: (305) 965-0813 Co-Counsel for SD Construction, LLC