Answer: VILLAS AT EMERALD LAKE HOMEOWNERS ASSOCIATION INC vs. ROYAL OAK HOMES LLC

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                                Filing # 128648673 E-Filed 06/14/2021 07:51:51 AM



                    IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
                            IN AND FOR OSCEOLA COUNTY, FLORIDA

                                          CASE NO: 2020-CA-002942

        VILLAS AT EMERALD          LAKE
         HOMEOWNERS           ASSOCIATION,        INC.,

                 Plaintiff,

        vs.

         ROYAL OAK HOMES,          LLC, et al.,

                 Defendants.


         ROYAL    OAK HOMES,       LLC,

                 Cross-Claimant,

        vs.


        ADVANCED WRAPPING AND CONCRETE
        SOLUTIONS OF CENTRAL FLORIDA, INC.,
        et al.,

                 Cross-Defendants.
                                                          /
        WEATHERMASTER            BUILDING     PRODUCTS,
         INC.,

                 Third-Party Plaintiff,

        vs.

        ALL GLASS INSTALLATION CORP., et al.,

                 Third-Party Defendants.
Third-Party Defendant All Glass Installation Corp.’s Answer and
  Affirmative Defenses to Weathermaster Building Products, Inc.’s Third-
                                     Party Complaint

      Third-Party Defendant All Glass             Installation Corp.   (“All Glass”), by and

through     undersigned   counsel,        files this Answer   and   Affirmative   Defenses   to

Defendant/Third-Party         Plaintiff     Weathermaster      Building     Products,   Inc.’s

(“Weathermaster”) Third-Party Complaint (filed January 18, 2021). In response,

All Glass states as follows:

                          Parties, Jurisdiction, and Venue

               Denied.

               Admitted for venue purposes.

               Without knowledge; therefore denied.

               Admitted that All Glass is an inactive Florida corporation previously

doing business in Osceola County. Otherwise, denied.

      5        Without knowledge; therefore denied.

      6        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

               The Project.
12.      Admitted that Weathermaster alleges claims arising from the design

and   construction       of the Villas   at Emerald   Lake     Townhome     Community      (the

“Project”). Otherwise denied.

       13.      Without knowledge; therefore denied.

       14.      Admitted.

       15       Admitted.

       B        Weathermaster’s Sub-subcontractors.

       16       Without knowledge; therefore denied.

       17       Denied.

       c        The Alleged Defects.

       18.      Admitted that the Association asserts claims against Royal Oak and

Weathermaster. It is denied that those claims “are more particularly described”

in the Association’s Complaint.

       19.      Admitted that Royal Oak filed a Crossclaim.

       20.      Denied     as phrased. The Association’s       Complaint and       Royal Oak’s

Crossclaim speak for themselves.

       21.      Denied.

       22.      Denied.

       23.      Denied.

                Count     I - Common     Law   Indemnity     (against All Glass)

       24.      All Glass reasserts its responses to paragraphs         1 - 23 as if fully set

forth herein.

       25.      Denied.
26       Denied.

       27       Denied.

       28       Denied.

                  Count II - Breach of Contract (against All Glass)

       29.      All Glass reasserts its responses to paragraphs          1 - 23 as if fully set

forth herein.

       30       Denied

       31       Denied

       32       Denied

       33       Denied

             Count III - Building Code Violations (against All Glass)

       34.      All Glass reasserts its responses to paragraphs      1 - 23 as if fully set

forth herein.

       35       Denied

       36       Denied

       37       Denied

       38       Denied

                         Count   IV - Negligence   (against All Glass)

       39.      All Glass reasserts its responses to paragraphs          1 - 23 as if fully set

forth herein.

       40.      Denied

       41.      Denied

       42.      Denied
43.      Denied.

                                      Counts V - XXXII

      Counts     V through    XXXII      (paragraphs     44 -— 186) are not directed to All

Glass. Therefore, no response is required. To the extent they may be construed

as made against All Glass, the allegations are denied.

      All allegations not expressly admitted above are denied, and strict proof is

demanded thereof.

                                    Affirmative Defenses

                                  First Affirmative Defense

      Weathermaster fails to state a cause of action against All Glass upon which

relief can be granted.

                              Second Affirmative Defense

      Any alleged defects or damages were, in whole or in part, the result of acts

or omissions on the part of persons or entities who were not under the control of

All Glass. Accordingly,      the claims should be barred or reduced in accordance

with the percentage of fault attributable to such persons or entities whether or

not a party to this action.

                               Third Affirmative Defense

      All Glass’ work was previously inspected, approved, accepted and paid for.

Therefore, the claims asserted against All Glass are barred by the doctrine of

Slavin v. Kay,    108    So. 2d    462   (Fla.   1959)   and   related   principals   of release,

estoppel, waiver, and merger.

                              Fourth Affirmative Defense
To the extent that Weathermaster has or does settle with, obtain judgment

against, receives payment      from any party or non-party,     or otherwise    receives

payment from any collateral sources, its damages are subject to setoff.

                              Fifth Affirmative Defense

      The Association and Weathermaster        have failed to comply with Chapter

558 in that they have not identified a scope of work that All Glass performed,

any defect with respect to any scope      of work performed     by All Glass,    or any

damages sustained as a result of such deficit with respect to such scope of work

so as to allow All Glass the opportunity to inspect and remedy any claimed defect.

Therefore, this matter should be dismissed.

                            Sixth Affirmative Defense

      Any alleged defects or damages were, in whole or in part, the result of acts

or omissions   on the part of Weathermaster,    the Association,   other contractors,

or other subcontractors. Therefore, Weathermaster’s claims should be barred or

reduced   in accordance   with the doctrine    of comparative   negligence     including

Weathermaster’s failure to inspect, supervise, or coordinate.

                          Seventh Affirmative Defense

      Weathermaster is unable to maintain its claims against All Glass to the

extent that the damages arise from or relate to deficiencies in the Project plans

and specifications, or defect in the materials or products Weathermaster, Royal

Oak, or any others supplied for All Glass’ use on the Project. See Slavin v. Kaye,

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

                            Eighth Affirmative Defense
Weathermaster        and     the   Association      failed     to    mitigate      their    alleged

damages,       and   therefore     any    such   damages       must        be    barred    or     reduced

accordingly.

                                  Ninth Affirmative Defense

       To the extent any claimed damages result in economic waste, the same are

prohibited under       Florida law. Austin-Westshore           Constr.          Co., Inc. v. Federated

Dep’t Stores, Inc., 934 F. 2d 1217, 1224 (11th Cir. 1991).

                                  Tenth Affirmative Defense

       Weathermaster’s claims are barred by the doctrines of payment,                             accord,

satisfaction, waiver, release or compromise and settlement.

                             Eleventh Affirmative Defense

       All Glass incorporates and asserts all the affirmative defenses alleged by

the other Defendants and Third-Party Defendants.

                                 Twelfth Affirmative Defense

       To the extent any damages sought against All Glass were caused in whole

or in part by acts of God,          events,    or causes   beyond          the control of All Glass,

recovery against All Glass is barred.

                            Thirteenth Affirmative Defense

       The claims asserted by Weathermaster are barred by the applicable statute

of limitations. See § 95.11(3){c).

                            Fourteenth Affirmative Defense

       Weathermaster’s claims are barred to the extent that the damages claimed

are   speculative,    excessive,     remote,     contingent,        prospective,       uncertain,      not
reasonably ascertainable; were unforeseeable, were not within the contemplation

of the parties to their respective contracts at the time they were entered; and do

not logically, naturally, probably, or proximately flow from any alleged breach.

                             Fifteenth Affirmative Defense

       The    claim    for violation of the Building Code          fails because      the required

building permits were obtained with the local government or public agency with

authority to enforce the Florida Building Code approved                  the plans; the project

passed all required inspections under the code; there is no personal injury or

damage to the property other than the property that is the subject of the permits,

plans, and    inspections;    and All Glass did not know,           nor should     it have known

that any violation existed.

                             Sixteenth Affirmative Defense

       All Glass      is not responsible    for any defects in plans and           specifications

supplied by the owner, or its architect and design consultants for work that may

have   been    performed     by   All   Glass,   that   is   in   conformity   with    plans   and

specifications, pursuant to the Spearin doctrine.

                            Seventeenth Affirmative Defense

       The alleged defects or deficiencies in any work performed by All Glass are

not a result of defective work but rather, a result of lack of proper maintenance,

abuse, or neglect by the property owners and Plaintiff.

                             Eighteenth Affirmative Defense

       To the extent that the remediation has resulted or will result in work that

would place the Plaintiffs in a position superior to the events complained of, said
work constitutes betterment to which Plaintiffs are not entitled. Grossman v. Sea

Towers, Ltd., 513 So. 2d 686 (Fla. 3d DCA 1987).

                                     Nineteenth Affirmative Defense

        Plaintiffs          cannot    recover      for alleged    construction        defects    that      are     not

addressed,          in reasonable        detail,    in its    Chapter      558    notice.    Plaintiffs    cannot

pursue those claims in accordance with § 558.004(11).

                                      Twentieth Affirmative Defense

        The Association has sued Weathermaster                            alleging negligence and active

fault. If the Association or Royal Oak ultimately prevails against Weathermaster,

they would have demonstrated that Weathermaster had active fault. Therefore,

Weathermaster would be “at fault” and unable to establish the first element of

common      law indemnification.              Mendez-Garcia       v. Galaxie Corp., 2011          WL      5358658

at *5 (M.D. Fla. Nov. 3, 2011) (explaining that if a jury found for the plaintiffs on

the    negligence           claim,   defendant      would     necessarily        be at fault,    precluding          a

common law indemnification claim); Lee v. Spicola, 1988 WL 152013 at *3 (M.D.

Fla. Dec.      9,    1988)     (“Thus, if Dioddate         is found      to be liable to Plaintiffs, he will

have    been        found      to be negligent       and     therefore     he will not be entitled               to be

indemnified.”);         Walter Taft Bradshaw               & Associates,     P.A. v. Bedsole,       374 So. 2d

644,     646        (Fla.      4th     DCA      1979)      (affirming      dismissal        of   common            law

indemnification claim with prejudice); Zeier Crane Rental, Inc. v. Double Aindus

Inc., 16 So. 3d 907, 911-12                  (Fla. 4th DCA 2009); Nucci v. Buchanan Ingersoll &

Rooney PC, 2016 WL 5843429 (M.D. Fla. Oct. 4, 2016).

                                     Twenty-First Affirmative Defense
The alleged relationship between Weathermaster and All Glass is that of

contractor and subcontractor. If, as Weathermaster alleges, All Glass is solely

responsible,      that     would    be    a    complete       defense     to     Plaintiffs’     claims.

Weathermaster       cannot    be held vicariously         liable for the acts of independent

subcontractors      and    therefore     Weathermaster’s       common          law indemnity       claim

fails as a matter of law. Paul N. Howard              Co. v. Affholder,        Inc., 701    So. 2d 402

(Fla. 5th DCA 1997).
                           Twenty-Second Affirmative Defense

      Weathermaster’s claim for indemnity fail as a matter of law. Consequently,

Weathermaster cannot bring any other third-party claims including its claims

for breach of contract, negligence,           and violation of the building code. Rupp v.

Philpot, 619 So. 2d 1047 (Fla. 5th DCA 1993).
                            Twenty-Third Affirmative Defense

      Weathermaster’s         negligence      claim   fails because     Weathermaster            cannot

establish   all   of the    elements,     including     the    requirement        that     the   tort   be

independent of any breach of contract claim.

                                    Reservation of Rights

      All Glass reserves the right to further amend these affirmative defenses as

additional facts are discovered.

                                   Demand       for Jury Trial

      All Glass demands a          trial by jury as to all issues so triable.




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Certificate of Service

         I CERTIFY that on June   14, 2021, the foregoing was electronically filed

through the Florida Courts E-Filing Portal which will send a notice of electronic

filing to all parties on the Service List, and the original has been filed with the

Court.


                                        s/        Eric J. Netcher
                                      ERIC J. NETCHER
                                      Florida Bar No. 106530
                                      Walker,         Revels,   Greninger
                                      & Netcher rPLLC
                                      189 S. Orange Ave., Suite 1830
                                      Orlando, Florida 32801
                                      407-789-1830
                                      enetcher@wrgn-law.
                                                      cor
                                      bpaymayesh@wren-law.com
                                      Counsel for All Glass Installation Corp.


                                  SERVICE          LIST

 COUNSEL FOR VILLAS AT                            COUNSEL FOR       ROYAL   OAK
 EMERALD LAKE HOMEOWNERS                          HOMES, LLC
 ASSOCIATION, INC.
                                                  Lannie D. Hough Jr., Esq.
 Phillip Joseph, Esq.                             Robin Leavengood, Esq.
 Evan Small, Esq.                                 Carlton Fields
 Jeffrey A. Widelitz, Esq.                        4221 W. Boy Scout Blvd, Suite 1000
 Nicholas B. Vargo, Esq.                          Tampa, FL 33607
 Ball Janik, LLP                                  lhough@carltonfields.com
 201 E. Pine Street, Suite 600                    nbonilla@carltonfields.com
 Orlando,   FL 32801                              leavengood@carltonfields.com
 T: 407-455-5664                                  brosa@carltonfields.com
 F: 407-902-2105                                  vwilliams@caritonfields.com
 pioseph@ballianik.com
  -small@ballianik.con
 jwidelitz@balljanik.com
 nyargo@ballianik.com
 ypalmer@balljanik.com
 orlandodocket@ballianik.com



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nwise@ballianik.com

COUNSEL      FOR WEATHERMASTER         COUNSEL      FOR ALL GLASS
BUILDING PRODUCTS,            INC.     INSTALLATION          CORP.

Michael E. Milne, Esq.                 Eric J. Netcher, Esq
Peter J. Kapsales, Esq.                Walker, Revels, Greninger & Netcher,
Milne Law    Group,    P.A.            PLLC
301 E. Pine Street, Suite 525             189 S. Orange Avenue, Suite 1830
Orlando,    FL 32801                   Orlando,    FL 32801
T: 321-558-7700                       T: 407-789-1830
F: 407-641-2111                       F: 321-251-2980
mmilne@milnelawgroup.com                  netchen@wrgn-law.com
spalazzolo@milnelawgroup.com           hpaymayesh@wrgn-law.com
eservice@milnelawgroup.com
pkapsales@milnelawgroup.com
mefta@milnelawgroup.com

COUNSEL FOR ADVANCED                   COUNSEL FOR WEINTRAUB
WRAPPING      AND      CONCRETE        INSPECTIONS       & FORENSIC,   INC.
SOLUTIONS OF CENTRAL
FLORIDA, INC.                         Timothy C. Ford, Esq.
                                      Andrew E. Holway, Esq.
Jayne Ann Pittman, Esq.                Hill Ward Henderson
Conroy Simberg                         101 E. Kennedy Blvd., Suite 3700
2 South Orange Avenue, Suite 300      Tampa,      FL 33602
Orlando, FL 32801                     T: 813-221-3900
T: 407-649-9797                       F: 813-221-2900
F: 407-649-1968                       tim.ford@hwhlaw.cor
eserviceorl@conroysimberg.com         Andrew. holway@hwhlaw.com
jpittman@conroysimbere.com            Tracy.coale@hwhlaw.com
tmmaitland@conroysimberg.com          Kathy.wernsing@hwhlaw.com
                                      Derrick.calandra@hwhlaw.com

COUNSEL FOR HUGH MACDONALD             COUNSEL FOR IMPERIAL
CONSTRUCTION, INC.                     BUILDING CORPORATION

Paul Sidney Elliott, Esq.             Thamir A.R. Kaddouri, Jr., Esq.
P.O. Box 274204                       Penelope T. Rowlett, Esq.
Tampa, FL 33688-4204                  Beth Ann Tobey, Esq.
pse@psejd.com                         Law Office of Thamir A.R. Kaddouri,
                                      Jr., P.A.
                                      3220 West Cypress Street
                                      Tampa, FL 33607
                                      T: 813-879-5752



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F: 813-879-5707
                                    Thamir.Kaddouri@tampalaw.org
                                    Service@Tampalaw.org
                                    Penelope.Rowlett@tampalaw.org

COUNSEL    FOR   DON   KING’S        COUNSEL      FOR     BROWN   + COMPANY
CONCRETE,     INC.                  ARCHITECTURE,          INC.

Kate F. Gaset, Esq.                 Bruce R. Calderon, Esq.
Denise M. Anderson, Esq.            D. Bryan Hill, Esq.
Butler Weihmuller Katz Craig LLP    Audra R. Creech, Esq.
400 N. Ashley Drive, Suite 2300     Milber Makris Plousadis & Seiden,
Tampa,   FL 33602                   LLP
T: 813-281-1900                     1900 NW Corporate Blvd., East
danderson@butler.Jegal              Tower, Suite 440
kgaset@butler.legal                 Boca Raton, FL 33431
mmilligan@butler.legal              T: 561-994-7310
=
jiacobs@butler.legal                F: 561-994-7313
                                     bealderon@milbermakris.com
                                     dhill@milbermakris.com
                                     acreech@milbermakris.com




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