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Filing # 131808768 E-Filed 08/02/2021 09:30:42 AM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
VILLAS AT EMERALD LAKE
HOMEOWNERS ASSOCIATION, INC., a
Florida not for profit corporation,
Plaintiff,
Vv. Case No.: 2020-CA-002942
ROYAL OAK HOMES, LLC, a Florida limited
liability company; ADVANCED WRAPPING
AND CONCRETE SOLUTIONS OF
CENTRAL FLORIDA, INC., a Florida
corporation; DON KING'S CONCRETE, INC.,
a Florida corporation; HUGH MACDONALD
CONSTRUCTION, INC., a Florida
corporation; IMPERIAL BUILDING
CORPORATION, a Florida corporation;
PREMIER PLASTERING OF CENTRAL
FLORIDA, INC N/K/A TGK STUCCO, INC.,
a Florida corporation; WEATHERMASTER
BUILDING PRODUCTS, INC., a Florida
corporation; WEINTRAUB INSPECTIONS &
FORENSICS, INC. N/K/A WEINTRAUB
ENGINEERING AND INSPECTIONS, INC.,
a Florida corporation; THE DIMILLO
GROUP, LLC, a Florida limited liability
company; WOLF'S IRRIGATION &
LANDSCAPING, INC., a Florida corporation;
SUMMERPARK HOMES, INC., a Florida
corporation; BROWN+COMPANY
ARCHITECTURE, INC., a Florida
corporation;
Defendants,
/
ROYAL OAK HOMES, LLC, a Florida limited
Liability company,
Crossclaim Plaintiff,
ADVANCED WRAPPING AND CONCRETE
SOLUTIONS OF CENTRAL FLORIDA,
INC., a Florida corporation; DON KING'S
CONCRETE, INC., a Florida corporation;
HUGH MACDONALD CONSTRUCTION,
INC., a Florida corporation; IMPERIAL
BUILDING CORPORATION, a Florida
corporation; PREMIER PLASTERING OF
CENTRAL FLORIDA, INC N/K/A TGK
STUCCO, INC., a Florida corporation;
WEATHERMASTER BUILDING
PRODUCTS, INC., a Florida corporation;
WEINTRAUB INSPECTIONS &
FORENSICS, INC. N/K/A WEINTRAUB
ENGINEERING AND INSPECTIONS, INC.,
WOLF'S IRRIGATION & LANDSCAPING,
INC., a Florida corporation;
BROWN+COMPANY ARCHITECTURE,
INC., a Florida corporation;
Crossclaim Defendants.
WEATHERMASTER BUILDING
PRODUCTS, INC., a Florida Corporation;
Third-Party Plaintiff,
Vv.
ALL GLASS INSTALLATION CORP., a
Florida Profit Corporation, CLEAR VISTA
INSTALLATION CORP., a Florida Profit
Corporation, TM CONSTRUCTION OF
SANFORD, INC., a Florida Profit Corporation,
CASEY HAWKINS GLASS, INC. a Florida
Profit Corporation, WELL HUNG WINDOWS
& DOORS, LLC. a Florida Limited Liability
Company, FRED BOWEN CONSTRUCTION,
INC., a Florida Profit Corporation, WINGNUT
CONSTRUCTION, INC., a Florida Profit
Corporation, SOUTHERN WINDOWS, LLC.,
a Florida Limited Liability Company.
Third-Party Defendants.
CASEY HAWKINS GLASS’
AMENDED ANSWER AND AFFIRMATIVE DEFENSES TO
WEATHERMASTER’S THIRD-PARTY COMPLAINT AND CROSS-CLAIM
Third-party Defendant, CASEY HAWKINS GLASS, INC. (“Casey Hawkins”), by and
through its attorneys, pursuant to Rule 1.090 and Rule 1.190(a), Florida Rules of Civil Procedure,
hereby answers the Third-party Complaint filed by Third-party Plaintiff, WEATHERMASTER
BUILDING PRODUCTS, INC., and asserts affirmative defenses thereto.
PARTIES, JURISDICTION, AND VENUE
Admitted for jurisdictional purposes only. Otherwise, denied.
Admitted.
Without knowledge. . Therefore, denied.
Without knowledge . Therefore, denied.
Admitted.
Without knowledge. . Therefore, denied.
Without knowledge . Therefore, denied.
Without knowledge. . Therefore, denied.
Without knowledge . Therefore, denied.
10. Without knowledge. . Therefore, denied.
11 Without knowledge. Therefore, denied.
GENERAL ALLEGATIONS
A The Project.
12. Casey Hawkins admits Plaintiff's Complaint speaks for itself. To the extent a
response is required, Casey Hawkins denies the allegations and demands strict proof thereof.
13. The allegations in this Paragraph do not pertain to Casey Hawkins. To the extent a
response is required, Casey Hawkins denies the allegations and demands strict proof thereof.
14. Casey Hawkins admits Plaintiff's Complaint speaks for itself. To the extent a
response is required, Casey Hawkins denies the allegations and demands strict proof thereof.
15. Casey Hawkins admits Royal Oak Homes’ Crossclaim speaks for itself. To the
extent a response is required, Casey Hawkins denies the allegations and demands strict proof
thereof.
B WEATHERMASTER’s Sub-subcontractors
16. Casey Hawkins admits it entered into a subcontractor agreement with
Weathermaster to perform window installation services at the Project. Otherwise, without
knowledge and therefore denied.
17. Casey Hawkins admits it entered into a subcontractor agreement with
Weathermaster to perform window installation services at the Project, and the exhibits attached to
Weathermaster’s Third-Party Complaint are written documents that speak for themselves.
Otherwise, without knowledge and therefore denied.
Cc The Alleged Defects
18. Casey Hawkins admits Plaintiff's Complaint speaks for itself. To the extent a
response is required, Casey Hawkins denies the allegations and demands strict proof thereof.
19. Casey Hawkins admits Royal Oak Homes’ Crossclaim speaks for itself. To the
extent a response is required, Casey Hawkins denies the allegations and demands strict proof
thereof.
20. Casey Hawkins admits Plaintiff's Complaint and Royal Oak Homes’ Crossclaim
speaks for themselves. To the extent a response is required, Casey Hawkins denies the allegations
and demands strict proof thereof.
21. Casey Hawkins admits Weathermaster’s Answers to Plaintiff's Complaint and
Royal Oak Homes’ Crossclaim speaks for themselves. To the extent Weathermaster is alleging
Casey Hawkins may be responsible for the alleged defects identified in Plaintiff's Complaint, such
allegations are denied and Casey Hawkins demands strict proof thereof.
22. Casey Hawkins denies the allegations related to its involvement on the Project.
Otherwise, without knowledge and therefore denied.
23. Denied. See Casey Hawkins’ Affirmative Defense Nos. 2, 4, 6, and 13.
COUNT I- COMMON LAW INDEMNITY
(against ALL GLASS)
24. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if
fully set forth herein.
25 —28. The allegations in this Count do no pertain to Casey Hawkins. To the extent these
Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied.
COUNT Il - BREACH OF CONTRACT
(against ALL GLASS)
29. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if
fully set forth herein.
30-33. The allegations in this Count do no pertain to Casey Hawkins. To the extent these
Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied.
COUNT III — BUILDING CODE VIOLATIONS
(against ALL GLASS)
34, Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if
fully set forth herein.
35 — 38. The allegations in this Count do no pertain to Casey Hawkins. To the extent these
Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied.
COUNT IV —- NEGLIGENCE
(against ALL GLASS)
39. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if
fully set forth herein.
40-43. The allegations in this Count do no pertain to Casey Hawkins. To the extent these
Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied.
COUNT V—- COMMON LAW INDEMNITY
(against HAWKINS)
44. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if
fully set forth herein.
45. Admitted for jurisdictional purposes only. Otherwise, denied.
46. Admitted, subject to the terms and conditions of the agreement with
Weathermaster.
47. Casey Hawkins admits Weathermaster’s Answers to Plaintiff's Complaint and
Royal Oak Homes’ Crossclaim speaks for themselves. Otherwise, without knowledge and
therefore denied.
48. Denied.
COUNT VI—- BREACH OF CONTRACT
(against HAWKINS)
49, Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if
fully set forth herein.
50. Admitted for jurisdictional purposes only.
51. Admitted Weathermaster subcontracted to Casey Hawkins. Exhibit C is a written
document that speaks for itself for which no response is required. To the extent it can be construed
as alleging ultimate facts, the same are denied. The remainder is denied.
52. Denied.
53. Denied.
COUNT VII— BUILDING CODE VIOLATIONS
(against HAWKINS)
54. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if
fully set forth herein.
55. Admitted for jurisdictional purposes only. Otherwise, denied.
56. Admitted, subject to the terms and conditions of the Agreement.
57. Casey Hawkins admits Plaintiff's Complaint and Royal Oak Homes’ Crossclaim
speak for themselves, and denies the allegations related to its involvement on the Project.
58. Denied.
COUNT VIII — NEGLIGENCE
(against HAWKINS)
59. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if
fully set forth herein.
60. Admitted for jurisdictional purposes only. Otherwise, denied.
61. Admitted, subject to the terms and conditions of the Agreement.
62. Casey Hawkins admits Plaintiff's Complaint and Royal Oak Homes’ Crossclaim
speak for themselves, and denies the allegations related to its involvement on the Project.
63. Denied.
COUNT IX —- CONTRACTUAL INDEMNITY
(against NESBIT)
64. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if
fully set forth herein.
65-71. The allegations in this Count do no pertain to Casey Hawkins. To the extent these
Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied.
COUNT X— BREACH OF CONTRACT
(against NESBIT)
72. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if
fully set forth herein.
73 —76. The allegations in this Count do no pertain to Casey Hawkins. To the extent these
Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied.
COUNT XI - BUILDING CODE VIOLATIONS
(against NESBIT)
77. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if
fully set forth herein.
78-81. The allegations in this Count do no pertain to Casey Hawkins. To the extent these
Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied.
COUNT XII — NEGLIGENCE
(against NESBIT)
82. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if
fully set forth herein.
83 — 86. The allegations in this Count do no pertain to Casey Hawkins. To the extent these
Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied.
COUNT XII - COMMON LAW INDEMNITY
(against HELBERG)
87. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if
fully set forth herein.
88-91. The allegations in this Count do no pertain to Casey Hawkins. To the extent these
Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied.
COUNT XIV — BREACH OF CONTRACT
(against HELBERG)
92. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if
fully set forth herein.
93 — 96. The allegations in this Count do no pertain to Casey Hawkins. To the extent these
Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied.
COUNT XV — BUILDING CODE VIOLATIONS
(against HELBERG)
97. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if
fully set forth herein.
98 - 101. The allegations in this Count do no pertain to Casey Hawkins. To the extent these
Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied.
COUNT XVI —- NEGLIGENCE
(against HELBERG)
102. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if
fully set forth herein.
103 - 106. The allegations in this Count do no pertain to Casey Hawkins. To the extent these
Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied.
COUNT XVII —- COMMON LAW INDEMNITY
(against HOBBIT)
107. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if
fully set forth herein.
108
- 111. The allegations in this Count do no pertain to Casey Hawkins. To the extent these
Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied.
COUNT XVIII — BREACH OF CONTRACT
(against HOBBIT)
112. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if
fully set forth herein.
113
- 116. The allegations in this Count do no pertain to Casey Hawkins. To the extent these
Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied.
COUNT XIX — BUILDING CODE VIOLATIONS
(against HOBBIT)
117. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if
fully set forth herein.
118-121. The allegations in this Count do no pertain to Casey Hawkins. To the extent these
Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied.
COUNT XX — NEGLIGENCE
(against HOBBIT)
10
122. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if
fully set forth herein.
123-126. The allegations in this Count do no pertain to Casey Hawkins. To the extent these
Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied.
COUNT XXI —- COMMON LAW INDEMNITY
(against T&M)
127. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if
fully set forth herein.
128
- 131. The allegations in this Count do no pertain to Casey Hawkins. To the extent these
Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied.
COUNT XXII — BREACH OF CONTRACT
(against T&M)
132. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if
fully set forth herein.
133
- 136. The allegations in this Count do no pertain to Casey Hawkins. To the extent these
Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied.
COUNT XXII — BUILDING CODE VIOLATIONS
(against T&M)
137. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if
fully set forth herein.
138-141. The allegations in this Count do no pertain to Casey Hawkins. To the extent these
Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied.
COUNT XXIV — NEGLIGENCE
(against T&M)
11
142. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if
fully set forth herein.
143 — 146. The allegations in this Count do no pertain to Casey Hawkins. To the extent these
Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied.
COUNT XXV —- COMMON LAW INDEMNITY
(against WELL DONE)
147. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if
fully set forth herein.
148
- 151. The allegations in this Count do no pertain to Casey Hawkins. To the extent these
Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied.
COUNT XXVI— BREACH OF CONTRACT
(against WELL DONE)
152. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if
fully set forth herein.
153 - 156. The allegations in this Count do no pertain to Casey Hawkins. To the extent these
Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied.
COUNT XXVII—- BUILDING CODE VIOLATIONS
(against WELL DONE)
157. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if
fully set forth herein.
158-161. The allegations in this Count do no pertain to Casey Hawkins. To the extent these
Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied.
COUNT XXVIII — NEGLIGENCE
(against WELL DONE)
12
162. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if
fully set forth herein.
163 — 166. The allegations in this Count do no pertain to Casey Hawkins. To the extent these
Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied.
COUNT XXIX — COMMON LAW INDEMNITY
(against WELL HUNG)
167. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if
fully set forth herein.
168 - 171. The allegations in this Count do no pertain to Casey Hawkins. To the extent these
Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied.
COUNT XXX — BREACH OF ORAL CONTRACT
(against WELL HUNG)
172. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if
fully set forth herein.
173 - 176. The allegations in this Count do no pertain to Casey Hawkins. To the extent these
Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied.
COUNT XXXI-— BUILDING CODE VIOLATIONS
(against WELL HUNG)
177. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if
fully set forth herein.
178
— 181. The allegations in this Count do no pertain to Casey Hawkins. To the extent these
Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied.
COUNT XXXII — NEGLIGENCE
(against WELL HUNG)
13
182. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if
fully set forth herein.
183 — 186. The allegations in this Count do no pertain to Casey Hawkins. To the extent these
Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied.
AFFIRMATIVE DEFENSES
First AFFIRMATIVE DEFENSE
All work performed by or at the direction of Casey Hawkins was performed in a good,
reasonable and workmanlike manner in accordance with all construction documents, all valid and
enforceable agreements, and all applicable building codes and standards.
SECOND AFFIRMATIVE DEFENSE
Plaintiff, Royal Oaks Homes, and/or Weathermaster failed to satisfy conditions precedent
to filing the instant suit against Casey Hawkins by failing to provide Casey Hawkins with an
appropriate notice of claim and opportunity to cure the alleged defects in accordance with Fla.
Stat. §558.004.
THIRD AFFIRMATIVE DEFENSE
The injuries and damages alleged by Plaintiff, Royal Oak Homes, and Weathermaster were
caused by parties who were not acting under the authority or right of control of Casey Hawkins.
However, to the extent that any apportionment of liability or damages is necessary, Casey Hawkins
affirmatively alleges it is entitled to an apportionment of damages in relation to the degree of fault
of all persons or entities responsible for same, pursuant to Fabre v. Marin, 623 So.2d 1 182 (Fla.
1993) and Section 768.81 of the Florida Statues, and interpreting case law.
FOURTH AFFIRMATIVE DEFENSE
14
To the extent Plaintiff, Royal Oak Homes, and/or Weathermaster have suffered damages, if
any, any recovery against Casey Hawkins is barred to the extent that they failed to mitigate their
damages as required under Florida law.
FIFTH AFFIRMATIVE DEFENSE
This action is barred by Slavin v. Kay, 108 So.2d, 462 (Fla. 1959). Slavin holds that once
a party’s work is completed and accepted by an owner or a general contractor, any action against
that party for patent defects accepted by the owner or general contractor, or if owner or general
contractor learns of it and do not rectify it, is barred. See also Foreline Security Corp. v. Marishia
Scott, 2004 WL 354545 (Fla. App. 5th DCA 2004); U.S. Lodging of Jacksonville, Ltd. v. H. B.
Daniel Construction Company, Inc., 612 So.2d 448 (Fla. 1st DCA 1993); and El Shorafa v.
Ruprecht, 345 So, 2d 763 (Fla. App. 4th DCA 1977).
SIXTH AFFIRMATIVE DEFENSE
Casey Hawkins cannot be held liable for damages that were caused by Plaintiff, its
representatives, staff, and/or tenants due to misuse and/or lack of maintenance for the subject property.
Therefore, Casey Hawkins is entitled to judgment as a matter of law or, alternatively, is entitled to
have its damages reduced in direct proportion to the percentage of fault attributable to Plaintiff, its
representatives, staff, and/or tenants.
SEVENTH AFFIRMATIVE DEFENSE
The damages alleged by Plaintiff, Royal Oak Homes, and/or Weathermaster, if any, were
caused, in whole or in part, by the superseding and intervening acts and negligence of known or
unknown parties. To the extent any superseding and intervening acts and negligence were the cause of
damage to the Project, the claims against Casey Hawkins must be barred or reduced thereby.
EIGHTH AFFIRMATIVE DEFENSE
15
The claims asserted by the Plaintiff, Royal Oak Homes, and Weathermaster are barred, or
in the alternative reduced, by the doctrine of Economic Waste.
NINTH AFFIRMATIVE DEFENSE
To the extent Plaintiff's, Royal Oak Homes’, and/or Weathermaster’s claims for damages
include improvements, betterments, and/or alleged repairs and replacements which were not the
proximate result of an act or omission of Casey Hawkins, damages are not recoverable and
constitute economic waste and/or unjust enrichment.
TENTH AFFIRMATIVE DEFENSE
Casey Hawkins states that none of the alleged defects raised in the Plaintiff's Complaint were
caused by Casey Hawkins’ work, but were instead caused by the improper and/or negligent supervision
of Plaintiff, Royal Oak Homes, Weathermaster, and/or by other defendants and non-parties, sub-
tradesmen, suppliers, materialmen, and/or other entities that worked on the Project. Therefore, Casey
Hawkins is entitled to judgment as a matter of law or, alternatively, is entitled to have its damages
reduced in direct proportion to the percentage of fault attributable to these other entities.
ELEVENTH AFFIRMATIVE DEFENSE
Casey Hawkins states that none of the alleged defects raised in Plaintiff's Complaint were
caused by Casey Hawkins, but were instead caused by an improper design, improper plans, improper
project specifications, improper selection of materials and/or other information upon which Casey
Hawkins reasonably relied upon in performing its work, all of which were prepared by or provided by
other parties and non-parties to this litigation. Therefore, Casey Hawkins is entitled to judgment as a
matter of law or, alternatively, is entitled to have its damages reduced in direct proportion to the
percentage of fault attributable to these design and engineering professionals.
TWELFTH AFFIRMATIVE DEFENSE
16
Casey Hawkins states that none of the alleged defects raised in Plaintiff's Complaint were
caused by Casey Hawkins, but were instead caused by Plaintiff's, Royal Oak Homes’,
Weathermaster’s, co-defendants’ or non-parties’ improper selection and approval of the various
building elements which are purportedly causing Plaintiff's damages. Therefore, Casey Hawkins is
entitled to judgment as a matter of law or, alternatively, is entitled to have its damages reduced in direct
proportion to the percentage of fault attributable to those other entities.
THIRTEENTH AFFIRMATIVE DEFENSE
Casey Hawkins states that Plaintiff, its representatives, staff, and/or tenants negligently
maintained the townhomes and that such negligent maintenance was the sole and proximate cause or
contributing cause of the damages allegedly sustained by the Association. Therefore, Casey Hawkins
is entitled to judgment as a matter of law or, alternatively, is entitled to have its damages reduced in
direct proportion to the percentage of fault attributable to Plaintiff, its representatives, staff, and/or
tenants.
FOURTEENTH AFFIRMATIVE DEFENSE
Casey Hawkins is entitled to a setoff against any damages which may be awarded to
Plaintiff, Royal Oak Homes, and/or Weathermaster for all payments by any and all collateral
sources for expenses, bills, or other obligations that may have or will be made relating to the
damages alleged by Plaintiff, Royal Oak Homes, and/or Weathermaster. Casey Hawkins hereby
gives notice that it intends to introduce all applicable collateral source payments to Plaintiff, Royal
Oak Homes, and/or Weathermaster for the purpose of reducing or eliminating the damages claimed
by each.
FIFTEENTH AFFIRMATIVE DEFENSE
17
Casey Hawkins states that the claims asserted by Plaintiff, Royal Oak Homes, and/or
Weathermaster are barred due to the doctrine of laches.
SIXTEENTH AFFIRMATIVE DEFENSE
Casey Hawkins states that the damages alleged in this matter, if any, were proximately
caused, in whole or in part, by an act of God for which Casey Hawkins has no responsibility; and
therefore, Casey Hawkins is entitled to judgment as a matter of law.
WHEREFORE, Third-Party Defendant, CASEY HAWKINS GLASS, INC., demands
strict proof of each and every allegation of Weathermaster’s Third-Party Complaint not expressly
and specifically admitted, requests this Court grant its defenses, dismiss the Third-Party
Complaint, tax costs, permit CASEY HAWKINS GLASS, INC. to go hence without day, and grant
all other and further relief this Court deems just and proper.
DEMAND FOR JURY TRL
Third-Party Defendant, CASEY HAWKINS GLASS, INC., hereby demands a jury trial
for all issues so triable by right.
[s| Michael
D. Ruck
MICHAEL D. RUEL, FL Bar No. 52835
BRENDEN C. COLLINS, Fla. Bar No.: 1025943
Galloway, Johnson, Tompkins, Burr & Smith,
P.LC.
400 N. Ashley Dr., Suite 1000
Tampa, FL 33602
(813) 977-1200 * (813) 977-1288 — Facsimile
tampaservice@gallowaylawfirm.com
mruel@gallowaylawfirm.com
beollins@gallowaylawfirm.com
Counsel for Third-Party Defendant, Casey
Hawkins Glass, Inc.
18
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to
the following parties, via electronic mail, this 2"4 day of August, 2021:
BALL JANIK LLP CARLTON FIELDS P.A.
Phillip E. Joesph, Esq. James Michael Walls, Esq.
Evan J. Small, Esq. Lannie D. Hough Jr., Esq.
Nicholas B. Vargo, Esq. Robin H. Leavengood, Esq.
Allana D.E. Smith, Esq. Brian C. Porter, Esq.
201 East Pine Street, Suite 600 4221 W. Boy Scout Blvd, Suite 1000
Orlando, Florida 32801 Tampa, Florida 33607
pjoseph@balljanik.com walis@ecarltonfields.com
esmall@balljanik.com rleavengood@carltonfields.com
vargo@balljanik.com lhough@earltonfields.com
smith@ballianik.com bporter@ecarltonfields.com
ypalmer@balljanik.com ejohnson@carltonfields.com
cbetancourt@balljanik.com nbonilla@carltonfields.com
mwise@balljanik.com bwoolard@carltonfields.com
ctsengoles@balljanik.con Counsel for Defendant, Royal Oak Homes,
orlandodocket@balljanik.com LLC
Counsel for Plaintiffs
HILL WARD HENDERSON, P.A. MOODY & GRAF, P.A.,
Timothy C. Ford, Esq. Chesley G. Moody, Jr., Esq.
Andrew E. Holway, Esq. Mai M. Le, Esq.
Rocco Cafaro, Esq. 1101 N. Lake Destiny Road, Suite 200
101 E. Kennedy Blvd., Suite 3700 Maitland, FL 32751
Tampa, Florida 33602 cmoody@moodygraf.com
tim.ford@hwhlaw.com mle@moodyeraf.con
andrew.holway@hwhlaw.com kpollak@moodygraf.com
‘occo.cafaro@hwhlaw.com tdixon@moodygraf.con
tracy.coale@hwhlaw.com Defendant, Premier Plastering of Central
kathy.wernsing@hwh.com Florida, Inc.
derrick.calandra@hwhlaw.com
Counsel for Weintraub Inspections &
Forensic, Inc.
LAW OFFICE OF THAMIR A. R. BUTLER WEIHMULLER KATZ CRAIG
KADDOURI, JR., P.A. LLP
Thamir A.R. Kaddouri, Jr., Esq. Denise M. Anderson, Esq.
Penelope T. Rowlett, Esq. David A. Mercer, Esq.
Beth Ann Tobey, Esq. 400 N. Ashley Drive, Suite 2300
3220 West Cypress Street Tampa, FL 33602
Tampa, Florida 33607 danderson@butler.legal
thamir.kaddouri(@tampalaw.org dmercer@butler,legal
service(@tampalaw.org
19
Counsel for Defendant, Imperial Building Counsel for Defendant, Don King’s Concrete,
Corporation Ine.
CONROY SIMBERG MILBER MAKRIS PLOUSADIS &
Jayne Ann Pittman, Esq. SEIDEN, LLP
Natalie C. Fischer, Esq. Bruce R. Calderon, Esq.
Two South Orange Avenue, Suite 300 D. Bryan Hill, Esq.
Orlando, FL 32801 Audra R. Creech, Esq.
eserviceorl@conroysimberg.com 1900 NW Corporate Blvd., East Tower, Suite
jpittman@conroysimberg.com 440 Boca Raton, Florida 33431
amaitland@conroysimberg.com bealderon@milbermakris.com
nfischer@conroysimberg.com dhill@milbermakris.com
Counsel for Defendant, Advanced Wrapping creech@milbermakris.com
and Concrete Solutions of Central Florida, Counsel for Defendant, Brown + Company
Ine. Architecture, Inc.
Paul Sidney Elliott, Esq. LAW OFFICE OF J. CHRISTOPHER
P.O. Box 274204 NORRIS
Tampa, FL 33688-4204 Joseph L. Zollner, Esq.
pse@psejd.com PO Box 7217
Counsel
for Hugh MacDonald Construction, London, KY 40742
Inc. FloridaCDLegalMail@LibertyMutual.com
joseph.zollner@libertymutual.com
Attorney for Third-Party Defendant, Lios
Concrete Corp
HAMILTON, PRICE & MARSHALL, WRIGHT, FULFORD, MOORHEAD &
P.A BROWN, P.A.
Andrew T. Marshall, Esq. COLE J. COPERTINO, ESQUIRE
Sara W. Mapes, Esq. Florida Bar Number: 76456
2400 Manatee Ave. W. RICHARD L. RUSSO, ESQUIRE
Bradenton, FL 34205 Florida Bar Number: 1018162
Andrew@hamiltonpricelaw.com 505 Maitland Avenue, Suite 1000
Sara@hamiltonpricelaw.com Altamonte Springs, Florida 32701
atmservice@hamiltonpricelaw.com ccopertino@wfimblaw.com
Nancy@hamiltonpricelaw.com rrusso@wfinblaw.com
Kelsey@hamiltonpricelaw.com cbraungart@wfmblaw.com
Counsel T&M Construction of Sanford, Inc. lwilliams@wfmblaw.com
Counsel for Third-Party Defendant, Well
Hung, Windows & Doors, LLC
MILNE LAW GROUP, P.A. GROELLE & SALMON, P.A.
PETER J. KAPSALES, ESQ. S. SCOTT ROSS, ESQ.
Florida Bar No.: 91176 Florida Bar No. 416584
MARGARET M. EFTA, ESQ. 1715 N. Westshore Blvd. Suite 320
Florida Bar No.: 125529 Tampa, FL 33607
301 E. Pine Street, Suite 525 gstcourtdoes@gspalaw.com
Orlando, FL 32801 ross@gspalaw.cor
pkapsales@mlinelawgroup.com Attorney
for Defendant, Helberg Enterprises,
mefta@milnelawgroup.com LLC
20
eservice@milnelawgroup.com
Counsel for Defendant, Weathermaster
Building Products, Inc.
FISHER BOYLES, LLP
WAYNE M. ALDER, ESQ.
Florida Bar No.: 0850616
7668 NW 125" Way
Pompano Beach, FL 33076
wayne.alder@fisherbroyles.com
wmalder@bellsouth.net
Attorney for Third-Party Defendant, E.R.O.
Construction, Inc.
[>] Michael
Ruet
MICHAEL D. RUEL
BRENDEN C. COLLINS
21
Preview
Filing # 131808768 E-Filed 08/02/2021 09:30:42 AM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA VILLAS AT EMERALD LAKE HOMEOWNERS ASSOCIATION, INC., a Florida not for profit corporation, Plaintiff, Vv. Case No.: 2020-CA-002942 ROYAL OAK HOMES, LLC, a Florida limited liability company; ADVANCED WRAPPING AND CONCRETE SOLUTIONS OF CENTRAL FLORIDA, INC., a Florida corporation; DON KING'S CONCRETE, INC., a Florida corporation; HUGH MACDONALD CONSTRUCTION, INC., a Florida corporation; IMPERIAL BUILDING CORPORATION, a Florida corporation; PREMIER PLASTERING OF CENTRAL FLORIDA, INC N/K/A TGK STUCCO, INC., a Florida corporation; WEATHERMASTER BUILDING PRODUCTS, INC., a Florida corporation; WEINTRAUB INSPECTIONS & FORENSICS, INC. N/K/A WEINTRAUB ENGINEERING AND INSPECTIONS, INC., a Florida corporation; THE DIMILLO GROUP, LLC, a Florida limited liability company; WOLF'S IRRIGATION & LANDSCAPING, INC., a Florida corporation; SUMMERPARK HOMES, INC., a Florida corporation; BROWN+COMPANY ARCHITECTURE, INC., a Florida corporation; Defendants, / ROYAL OAK HOMES, LLC, a Florida limited Liability company, Crossclaim Plaintiff, ADVANCED WRAPPING AND CONCRETE SOLUTIONS OF CENTRAL FLORIDA, INC., a Florida corporation; DON KING'S CONCRETE, INC., a Florida corporation; HUGH MACDONALD CONSTRUCTION, INC., a Florida corporation; IMPERIAL BUILDING CORPORATION, a Florida corporation; PREMIER PLASTERING OF CENTRAL FLORIDA, INC N/K/A TGK STUCCO, INC., a Florida corporation; WEATHERMASTER BUILDING PRODUCTS, INC., a Florida corporation; WEINTRAUB INSPECTIONS & FORENSICS, INC. N/K/A WEINTRAUB ENGINEERING AND INSPECTIONS, INC., WOLF'S IRRIGATION & LANDSCAPING, INC., a Florida corporation; BROWN+COMPANY ARCHITECTURE, INC., a Florida corporation; Crossclaim Defendants. WEATHERMASTER BUILDING PRODUCTS, INC., a Florida Corporation; Third-Party Plaintiff, Vv. ALL GLASS INSTALLATION CORP., a Florida Profit Corporation, CLEAR VISTA INSTALLATION CORP., a Florida Profit Corporation, TM CONSTRUCTION OF SANFORD, INC., a Florida Profit Corporation, CASEY HAWKINS GLASS, INC. a Florida Profit Corporation, WELL HUNG WINDOWS & DOORS, LLC. a Florida Limited Liability Company, FRED BOWEN CONSTRUCTION, INC., a Florida Profit Corporation, WINGNUT CONSTRUCTION, INC., a Florida Profit Corporation, SOUTHERN WINDOWS, LLC., a Florida Limited Liability Company. Third-Party Defendants. CASEY HAWKINS GLASS’ AMENDED ANSWER AND AFFIRMATIVE DEFENSES TO WEATHERMASTER’S THIRD-PARTY COMPLAINT AND CROSS-CLAIM Third-party Defendant, CASEY HAWKINS GLASS, INC. (“Casey Hawkins”), by and through its attorneys, pursuant to Rule 1.090 and Rule 1.190(a), Florida Rules of Civil Procedure, hereby answers the Third-party Complaint filed by Third-party Plaintiff, WEATHERMASTER BUILDING PRODUCTS, INC., and asserts affirmative defenses thereto. PARTIES, JURISDICTION, AND VENUE Admitted for jurisdictional purposes only. Otherwise, denied. Admitted. Without knowledge. . Therefore, denied. Without knowledge . Therefore, denied. Admitted. Without knowledge. . Therefore, denied. Without knowledge . Therefore, denied. Without knowledge. . Therefore, denied. Without knowledge . Therefore, denied. 10. Without knowledge. . Therefore, denied. 11 Without knowledge. Therefore, denied. GENERAL ALLEGATIONS A The Project. 12. Casey Hawkins admits Plaintiff's Complaint speaks for itself. To the extent a response is required, Casey Hawkins denies the allegations and demands strict proof thereof. 13. The allegations in this Paragraph do not pertain to Casey Hawkins. To the extent a response is required, Casey Hawkins denies the allegations and demands strict proof thereof. 14. Casey Hawkins admits Plaintiff's Complaint speaks for itself. To the extent a response is required, Casey Hawkins denies the allegations and demands strict proof thereof. 15. Casey Hawkins admits Royal Oak Homes’ Crossclaim speaks for itself. To the extent a response is required, Casey Hawkins denies the allegations and demands strict proof thereof. B WEATHERMASTER’s Sub-subcontractors 16. Casey Hawkins admits it entered into a subcontractor agreement with Weathermaster to perform window installation services at the Project. Otherwise, without knowledge and therefore denied. 17. Casey Hawkins admits it entered into a subcontractor agreement with Weathermaster to perform window installation services at the Project, and the exhibits attached to Weathermaster’s Third-Party Complaint are written documents that speak for themselves. Otherwise, without knowledge and therefore denied. Cc The Alleged Defects 18. Casey Hawkins admits Plaintiff's Complaint speaks for itself. To the extent a response is required, Casey Hawkins denies the allegations and demands strict proof thereof. 19. Casey Hawkins admits Royal Oak Homes’ Crossclaim speaks for itself. To the extent a response is required, Casey Hawkins denies the allegations and demands strict proof thereof. 20. Casey Hawkins admits Plaintiff's Complaint and Royal Oak Homes’ Crossclaim speaks for themselves. To the extent a response is required, Casey Hawkins denies the allegations and demands strict proof thereof. 21. Casey Hawkins admits Weathermaster’s Answers to Plaintiff's Complaint and Royal Oak Homes’ Crossclaim speaks for themselves. To the extent Weathermaster is alleging Casey Hawkins may be responsible for the alleged defects identified in Plaintiff's Complaint, such allegations are denied and Casey Hawkins demands strict proof thereof. 22. Casey Hawkins denies the allegations related to its involvement on the Project. Otherwise, without knowledge and therefore denied. 23. Denied. See Casey Hawkins’ Affirmative Defense Nos. 2, 4, 6, and 13. COUNT I- COMMON LAW INDEMNITY (against ALL GLASS) 24. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if fully set forth herein. 25 —28. The allegations in this Count do no pertain to Casey Hawkins. To the extent these Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied. COUNT Il - BREACH OF CONTRACT (against ALL GLASS) 29. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if fully set forth herein. 30-33. The allegations in this Count do no pertain to Casey Hawkins. To the extent these Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied. COUNT III — BUILDING CODE VIOLATIONS (against ALL GLASS) 34, Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if fully set forth herein. 35 — 38. The allegations in this Count do no pertain to Casey Hawkins. To the extent these Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied. COUNT IV —- NEGLIGENCE (against ALL GLASS) 39. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if fully set forth herein. 40-43. The allegations in this Count do no pertain to Casey Hawkins. To the extent these Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied. COUNT V—- COMMON LAW INDEMNITY (against HAWKINS) 44. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if fully set forth herein. 45. Admitted for jurisdictional purposes only. Otherwise, denied. 46. Admitted, subject to the terms and conditions of the agreement with Weathermaster. 47. Casey Hawkins admits Weathermaster’s Answers to Plaintiff's Complaint and Royal Oak Homes’ Crossclaim speaks for themselves. Otherwise, without knowledge and therefore denied. 48. Denied. COUNT VI—- BREACH OF CONTRACT (against HAWKINS) 49, Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if fully set forth herein. 50. Admitted for jurisdictional purposes only. 51. Admitted Weathermaster subcontracted to Casey Hawkins. Exhibit C is a written document that speaks for itself for which no response is required. To the extent it can be construed as alleging ultimate facts, the same are denied. The remainder is denied. 52. Denied. 53. Denied. COUNT VII— BUILDING CODE VIOLATIONS (against HAWKINS) 54. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if fully set forth herein. 55. Admitted for jurisdictional purposes only. Otherwise, denied. 56. Admitted, subject to the terms and conditions of the Agreement. 57. Casey Hawkins admits Plaintiff's Complaint and Royal Oak Homes’ Crossclaim speak for themselves, and denies the allegations related to its involvement on the Project. 58. Denied. COUNT VIII — NEGLIGENCE (against HAWKINS) 59. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if fully set forth herein. 60. Admitted for jurisdictional purposes only. Otherwise, denied. 61. Admitted, subject to the terms and conditions of the Agreement. 62. Casey Hawkins admits Plaintiff's Complaint and Royal Oak Homes’ Crossclaim speak for themselves, and denies the allegations related to its involvement on the Project. 63. Denied. COUNT IX —- CONTRACTUAL INDEMNITY (against NESBIT) 64. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if fully set forth herein. 65-71. The allegations in this Count do no pertain to Casey Hawkins. To the extent these Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied. COUNT X— BREACH OF CONTRACT (against NESBIT) 72. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if fully set forth herein. 73 —76. The allegations in this Count do no pertain to Casey Hawkins. To the extent these Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied. COUNT XI - BUILDING CODE VIOLATIONS (against NESBIT) 77. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if fully set forth herein. 78-81. The allegations in this Count do no pertain to Casey Hawkins. To the extent these Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied. COUNT XII — NEGLIGENCE (against NESBIT) 82. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if fully set forth herein. 83 — 86. The allegations in this Count do no pertain to Casey Hawkins. To the extent these Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied. COUNT XII - COMMON LAW INDEMNITY (against HELBERG) 87. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if fully set forth herein. 88-91. The allegations in this Count do no pertain to Casey Hawkins. To the extent these Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied. COUNT XIV — BREACH OF CONTRACT (against HELBERG) 92. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if fully set forth herein. 93 — 96. The allegations in this Count do no pertain to Casey Hawkins. To the extent these Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied. COUNT XV — BUILDING CODE VIOLATIONS (against HELBERG) 97. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if fully set forth herein. 98 - 101. The allegations in this Count do no pertain to Casey Hawkins. To the extent these Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied. COUNT XVI —- NEGLIGENCE (against HELBERG) 102. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if fully set forth herein. 103 - 106. The allegations in this Count do no pertain to Casey Hawkins. To the extent these Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied. COUNT XVII —- COMMON LAW INDEMNITY (against HOBBIT) 107. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if fully set forth herein. 108 - 111. The allegations in this Count do no pertain to Casey Hawkins. To the extent these Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied. COUNT XVIII — BREACH OF CONTRACT (against HOBBIT) 112. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if fully set forth herein. 113 - 116. The allegations in this Count do no pertain to Casey Hawkins. To the extent these Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied. COUNT XIX — BUILDING CODE VIOLATIONS (against HOBBIT) 117. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if fully set forth herein. 118-121. The allegations in this Count do no pertain to Casey Hawkins. To the extent these Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied. COUNT XX — NEGLIGENCE (against HOBBIT) 10 122. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if fully set forth herein. 123-126. The allegations in this Count do no pertain to Casey Hawkins. To the extent these Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied. COUNT XXI —- COMMON LAW INDEMNITY (against T&M) 127. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if fully set forth herein. 128 - 131. The allegations in this Count do no pertain to Casey Hawkins. To the extent these Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied. COUNT XXII — BREACH OF CONTRACT (against T&M) 132. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if fully set forth herein. 133 - 136. The allegations in this Count do no pertain to Casey Hawkins. To the extent these Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied. COUNT XXII — BUILDING CODE VIOLATIONS (against T&M) 137. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if fully set forth herein. 138-141. The allegations in this Count do no pertain to Casey Hawkins. To the extent these Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied. COUNT XXIV — NEGLIGENCE (against T&M) 11 142. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if fully set forth herein. 143 — 146. The allegations in this Count do no pertain to Casey Hawkins. To the extent these Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied. COUNT XXV —- COMMON LAW INDEMNITY (against WELL DONE) 147. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if fully set forth herein. 148 - 151. The allegations in this Count do no pertain to Casey Hawkins. To the extent these Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied. COUNT XXVI— BREACH OF CONTRACT (against WELL DONE) 152. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if fully set forth herein. 153 - 156. The allegations in this Count do no pertain to Casey Hawkins. To the extent these Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied. COUNT XXVII—- BUILDING CODE VIOLATIONS (against WELL DONE) 157. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if fully set forth herein. 158-161. The allegations in this Count do no pertain to Casey Hawkins. To the extent these Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied. COUNT XXVIII — NEGLIGENCE (against WELL DONE) 12 162. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if fully set forth herein. 163 — 166. The allegations in this Count do no pertain to Casey Hawkins. To the extent these Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied. COUNT XXIX — COMMON LAW INDEMNITY (against WELL HUNG) 167. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if fully set forth herein. 168 - 171. The allegations in this Count do no pertain to Casey Hawkins. To the extent these Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied. COUNT XXX — BREACH OF ORAL CONTRACT (against WELL HUNG) 172. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if fully set forth herein. 173 - 176. The allegations in this Count do no pertain to Casey Hawkins. To the extent these Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied. COUNT XXXI-— BUILDING CODE VIOLATIONS (against WELL HUNG) 177. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if fully set forth herein. 178 — 181. The allegations in this Count do no pertain to Casey Hawkins. To the extent these Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied. COUNT XXXII — NEGLIGENCE (against WELL HUNG) 13 182. Casey Hawkins reasserts the allegations contained in Paragraphs 1-23 above as if fully set forth herein. 183 — 186. The allegations in this Count do no pertain to Casey Hawkins. To the extent these Paragraphs can be construed as alleging ultimate facts against Casey Hawkins, they are denied. AFFIRMATIVE DEFENSES First AFFIRMATIVE DEFENSE All work performed by or at the direction of Casey Hawkins was performed in a good, reasonable and workmanlike manner in accordance with all construction documents, all valid and enforceable agreements, and all applicable building codes and standards. SECOND AFFIRMATIVE DEFENSE Plaintiff, Royal Oaks Homes, and/or Weathermaster failed to satisfy conditions precedent to filing the instant suit against Casey Hawkins by failing to provide Casey Hawkins with an appropriate notice of claim and opportunity to cure the alleged defects in accordance with Fla. Stat. §558.004. THIRD AFFIRMATIVE DEFENSE The injuries and damages alleged by Plaintiff, Royal Oak Homes, and Weathermaster were caused by parties who were not acting under the authority or right of control of Casey Hawkins. However, to the extent that any apportionment of liability or damages is necessary, Casey Hawkins affirmatively alleges it is entitled to an apportionment of damages in relation to the degree of fault of all persons or entities responsible for same, pursuant to Fabre v. Marin, 623 So.2d 1 182 (Fla. 1993) and Section 768.81 of the Florida Statues, and interpreting case law. FOURTH AFFIRMATIVE DEFENSE 14 To the extent Plaintiff, Royal Oak Homes, and/or Weathermaster have suffered damages, if any, any recovery against Casey Hawkins is barred to the extent that they failed to mitigate their damages as required under Florida law. FIFTH AFFIRMATIVE DEFENSE This action is barred by Slavin v. Kay, 108 So.2d, 462 (Fla. 1959). Slavin holds that once a party’s work is completed and accepted by an owner or a general contractor, any action against that party for patent defects accepted by the owner or general contractor, or if owner or general contractor learns of it and do not rectify it, is barred. See also Foreline Security Corp. v. Marishia Scott, 2004 WL 354545 (Fla. App. 5th DCA 2004); U.S. Lodging of Jacksonville, Ltd. v. H. B. Daniel Construction Company, Inc., 612 So.2d 448 (Fla. 1st DCA 1993); and El Shorafa v. Ruprecht, 345 So, 2d 763 (Fla. App. 4th DCA 1977). SIXTH AFFIRMATIVE DEFENSE Casey Hawkins cannot be held liable for damages that were caused by Plaintiff, its representatives, staff, and/or tenants due to misuse and/or lack of maintenance for the subject property. Therefore, Casey Hawkins is entitled to judgment as a matter of law or, alternatively, is entitled to have its damages reduced in direct proportion to the percentage of fault attributable to Plaintiff, its representatives, staff, and/or tenants. SEVENTH AFFIRMATIVE DEFENSE The damages alleged by Plaintiff, Royal Oak Homes, and/or Weathermaster, if any, were caused, in whole or in part, by the superseding and intervening acts and negligence of known or unknown parties. To the extent any superseding and intervening acts and negligence were the cause of damage to the Project, the claims against Casey Hawkins must be barred or reduced thereby. EIGHTH AFFIRMATIVE DEFENSE 15 The claims asserted by the Plaintiff, Royal Oak Homes, and Weathermaster are barred, or in the alternative reduced, by the doctrine of Economic Waste. NINTH AFFIRMATIVE DEFENSE To the extent Plaintiff's, Royal Oak Homes’, and/or Weathermaster’s claims for damages include improvements, betterments, and/or alleged repairs and replacements which were not the proximate result of an act or omission of Casey Hawkins, damages are not recoverable and constitute economic waste and/or unjust enrichment. TENTH AFFIRMATIVE DEFENSE Casey Hawkins states that none of the alleged defects raised in the Plaintiff's Complaint were caused by Casey Hawkins’ work, but were instead caused by the improper and/or negligent supervision of Plaintiff, Royal Oak Homes, Weathermaster, and/or by other defendants and non-parties, sub- tradesmen, suppliers, materialmen, and/or other entities that worked on the Project. Therefore, Casey Hawkins is entitled to judgment as a matter of law or, alternatively, is entitled to have its damages reduced in direct proportion to the percentage of fault attributable to these other entities. ELEVENTH AFFIRMATIVE DEFENSE Casey Hawkins states that none of the alleged defects raised in Plaintiff's Complaint were caused by Casey Hawkins, but were instead caused by an improper design, improper plans, improper project specifications, improper selection of materials and/or other information upon which Casey Hawkins reasonably relied upon in performing its work, all of which were prepared by or provided by other parties and non-parties to this litigation. Therefore, Casey Hawkins is entitled to judgment as a matter of law or, alternatively, is entitled to have its damages reduced in direct proportion to the percentage of fault attributable to these design and engineering professionals. TWELFTH AFFIRMATIVE DEFENSE 16 Casey Hawkins states that none of the alleged defects raised in Plaintiff's Complaint were caused by Casey Hawkins, but were instead caused by Plaintiff's, Royal Oak Homes’, Weathermaster’s, co-defendants’ or non-parties’ improper selection and approval of the various building elements which are purportedly causing Plaintiff's damages. Therefore, Casey Hawkins is entitled to judgment as a matter of law or, alternatively, is entitled to have its damages reduced in direct proportion to the percentage of fault attributable to those other entities. THIRTEENTH AFFIRMATIVE DEFENSE Casey Hawkins states that Plaintiff, its representatives, staff, and/or tenants negligently maintained the townhomes and that such negligent maintenance was the sole and proximate cause or contributing cause of the damages allegedly sustained by the Association. Therefore, Casey Hawkins is entitled to judgment as a matter of law or, alternatively, is entitled to have its damages reduced in direct proportion to the percentage of fault attributable to Plaintiff, its representatives, staff, and/or tenants. FOURTEENTH AFFIRMATIVE DEFENSE Casey Hawkins is entitled to a setoff against any damages which may be awarded to Plaintiff, Royal Oak Homes, and/or Weathermaster for all payments by any and all collateral sources for expenses, bills, or other obligations that may have or will be made relating to the damages alleged by Plaintiff, Royal Oak Homes, and/or Weathermaster. Casey Hawkins hereby gives notice that it intends to introduce all applicable collateral source payments to Plaintiff, Royal Oak Homes, and/or Weathermaster for the purpose of reducing or eliminating the damages claimed by each. FIFTEENTH AFFIRMATIVE DEFENSE 17 Casey Hawkins states that the claims asserted by Plaintiff, Royal Oak Homes, and/or Weathermaster are barred due to the doctrine of laches. SIXTEENTH AFFIRMATIVE DEFENSE Casey Hawkins states that the damages alleged in this matter, if any, were proximately caused, in whole or in part, by an act of God for which Casey Hawkins has no responsibility; and therefore, Casey Hawkins is entitled to judgment as a matter of law. WHEREFORE, Third-Party Defendant, CASEY HAWKINS GLASS, INC., demands strict proof of each and every allegation of Weathermaster’s Third-Party Complaint not expressly and specifically admitted, requests this Court grant its defenses, dismiss the Third-Party Complaint, tax costs, permit CASEY HAWKINS GLASS, INC. to go hence without day, and grant all other and further relief this Court deems just and proper. DEMAND FOR JURY TRL Third-Party Defendant, CASEY HAWKINS GLASS, INC., hereby demands a jury trial for all issues so triable by right. [s| Michael D. Ruck MICHAEL D. RUEL, FL Bar No. 52835 BRENDEN C. COLLINS, Fla. Bar No.: 1025943 Galloway, Johnson, Tompkins, Burr & Smith, P.LC. 400 N. Ashley Dr., Suite 1000 Tampa, FL 33602 (813) 977-1200 * (813) 977-1288 — Facsimile tampaservice@gallowaylawfirm.com mruel@gallowaylawfirm.com beollins@gallowaylawfirm.com Counsel for Third-Party Defendant, Casey Hawkins Glass, Inc. 18 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the following parties, via electronic mail, this 2"4 day of August, 2021: BALL JANIK LLP CARLTON FIELDS P.A. Phillip E. Joesph, Esq. James Michael Walls, Esq. Evan J. Small, Esq. Lannie D. Hough Jr., Esq. Nicholas B. Vargo, Esq. Robin H. Leavengood, Esq. Allana D.E. Smith, Esq. Brian C. Porter, Esq. 201 East Pine Street, Suite 600 4221 W. Boy Scout Blvd, Suite 1000 Orlando, Florida 32801 Tampa, Florida 33607 pjoseph@balljanik.com walis@ecarltonfields.com esmall@balljanik.com rleavengood@carltonfields.com vargo@balljanik.com lhough@earltonfields.com smith@ballianik.com bporter@ecarltonfields.com ypalmer@balljanik.com ejohnson@carltonfields.com cbetancourt@balljanik.com nbonilla@carltonfields.com mwise@balljanik.com bwoolard@carltonfields.com ctsengoles@balljanik.con Counsel for Defendant, Royal Oak Homes, orlandodocket@balljanik.com LLC Counsel for Plaintiffs HILL WARD HENDERSON, P.A. MOODY & GRAF, P.A., Timothy C. Ford, Esq. Chesley G. Moody, Jr., Esq. Andrew E. Holway, Esq. Mai M. Le, Esq. Rocco Cafaro, Esq. 1101 N. Lake Destiny Road, Suite 200 101 E. Kennedy Blvd., Suite 3700 Maitland, FL 32751 Tampa, Florida 33602 cmoody@moodygraf.com tim.ford@hwhlaw.com mle@moodyeraf.con andrew.holway@hwhlaw.com kpollak@moodygraf.com ‘occo.cafaro@hwhlaw.com tdixon@moodygraf.con tracy.coale@hwhlaw.com Defendant, Premier Plastering of Central kathy.wernsing@hwh.com Florida, Inc. derrick.calandra@hwhlaw.com Counsel for Weintraub Inspections & Forensic, Inc. LAW OFFICE OF THAMIR A. R. BUTLER WEIHMULLER KATZ CRAIG KADDOURI, JR., P.A. LLP Thamir A.R. Kaddouri, Jr., Esq. Denise M. Anderson, Esq. Penelope T. Rowlett, Esq. David A. Mercer, Esq. Beth Ann Tobey, Esq. 400 N. Ashley Drive, Suite 2300 3220 West Cypress Street Tampa, FL 33602 Tampa, Florida 33607 danderson@butler.legal thamir.kaddouri(@tampalaw.org dmercer@butler,legal service(@tampalaw.org 19 Counsel for Defendant, Imperial Building Counsel for Defendant, Don King’s Concrete, Corporation Ine. CONROY SIMBERG MILBER MAKRIS PLOUSADIS & Jayne Ann Pittman, Esq. SEIDEN, LLP Natalie C. Fischer, Esq. Bruce R. Calderon, Esq. Two South Orange Avenue, Suite 300 D. Bryan Hill, Esq. Orlando, FL 32801 Audra R. Creech, Esq. eserviceorl@conroysimberg.com 1900 NW Corporate Blvd., East Tower, Suite jpittman@conroysimberg.com 440 Boca Raton, Florida 33431 amaitland@conroysimberg.com bealderon@milbermakris.com nfischer@conroysimberg.com dhill@milbermakris.com Counsel for Defendant, Advanced Wrapping creech@milbermakris.com and Concrete Solutions of Central Florida, Counsel for Defendant, Brown + Company Ine. Architecture, Inc. Paul Sidney Elliott, Esq. LAW OFFICE OF J. CHRISTOPHER P.O. Box 274204 NORRIS Tampa, FL 33688-4204 Joseph L. Zollner, Esq. pse@psejd.com PO Box 7217 Counsel for Hugh MacDonald Construction, London, KY 40742 Inc. FloridaCDLegalMail@LibertyMutual.com joseph.zollner@libertymutual.com Attorney for Third-Party Defendant, Lios Concrete Corp HAMILTON, PRICE & MARSHALL, WRIGHT, FULFORD, MOORHEAD & P.A BROWN, P.A. Andrew T. Marshall, Esq. COLE J. COPERTINO, ESQUIRE Sara W. Mapes, Esq. Florida Bar Number: 76456 2400 Manatee Ave. W. RICHARD L. RUSSO, ESQUIRE Bradenton, FL 34205 Florida Bar Number: 1018162 Andrew@hamiltonpricelaw.com 505 Maitland Avenue, Suite 1000 Sara@hamiltonpricelaw.com Altamonte Springs, Florida 32701 atmservice@hamiltonpricelaw.com ccopertino@wfimblaw.com Nancy@hamiltonpricelaw.com rrusso@wfinblaw.com Kelsey@hamiltonpricelaw.com cbraungart@wfmblaw.com Counsel T&M Construction of Sanford, Inc. lwilliams@wfmblaw.com Counsel for Third-Party Defendant, Well Hung, Windows & Doors, LLC MILNE LAW GROUP, P.A. GROELLE & SALMON, P.A. PETER J. KAPSALES, ESQ. S. SCOTT ROSS, ESQ. Florida Bar No.: 91176 Florida Bar No. 416584 MARGARET M. EFTA, ESQ. 1715 N. Westshore Blvd. Suite 320 Florida Bar No.: 125529 Tampa, FL 33607 301 E. Pine Street, Suite 525 gstcourtdoes@gspalaw.com Orlando, FL 32801 ross@gspalaw.cor pkapsales@mlinelawgroup.com Attorney for Defendant, Helberg Enterprises, mefta@milnelawgroup.com LLC 20 eservice@milnelawgroup.com Counsel for Defendant, Weathermaster Building Products, Inc. FISHER BOYLES, LLP WAYNE M. ALDER, ESQ. Florida Bar No.: 0850616 7668 NW 125" Way Pompano Beach, FL 33076 wayne.alder@fisherbroyles.com wmalder@bellsouth.net Attorney for Third-Party Defendant, E.R.O. Construction, Inc. [>] Michael Ruet MICHAEL D. RUEL BRENDEN C. COLLINS 21