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Filing # 128599447 E-Filed 06/11/2021 02:41:03 PM
IN THE CIRCUIT COURT OF THE 97%
JUDICIAL CIRCUIT IN AND FOR
OSCEOLA COUNTY, FLORIDA
CASE NO.: 2020-CA-002942-ON
VILLAS AT EMERALD LAKE
HOMEONWERS ASSOCIATION, INC., a
Florida not for profit corporation,
Plaintiff,
Vv.
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;
Defendant.
/
ROYAL OAK HOMES, LLC, a Florida
limited liability company;
Crossclaim Plaintiff,
Vv.
ADVANCED WRAPPING AND
CONCRETE SOLUTION 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; WOLF'S IRRIGATION
& LANDSCAPING, INC., a Florida
corporation; BROWN+ COMPANY
ARCHITECTURE, INC., a Florida
corporation;
Crossclaim Defendants
/
DEFENDANT, BROWN + COMPANY ARCHITECTURE, INC.’S.
MOTION TO DISMISS COUNTS TWENTY-NINE, THIRTY, AND THIRTY-ONE OF
ROYAL OAK’S AMENDED CROSS-COMPLAINT AND MOTION TO STRIKE
CLAIMS FOR PREJUGMENT INTEREST
Pursuant to the Florida Rules of Civil Procedure, specifically Rules 1.110 and 1.140,
Crossclaim Defendant, BROWN + COMPANY ARCHITECTURE, INC., (“Brown”) respectfully
moves this Court for entry of an Order to dismiss Crossclaim Plaintiff, ROYAL OAK HOMES
LLC f/k/a AVH ACQUISITION, LLC ’s (“Royal Oak”) Amended Cross-Complaint and for the
entry of an Order striking Royal Oak’s claims for pre-judgment interest, and in support thereof
states as follows:
SUMMARY OF ARGUMENTS
Count Thirty-One, Royal Oak’s Statutory Cause of Action Pursuant to § 553.84, Fla. Stat.,
fails because the statute does not apply to professionals rendering design services. Rather, courts
in Florida have interpreted § 553.84, Fla. Stat. as applying only to entities rendering construction
services, i.e., contractors and construction trades. Brown is a professional architectural firm that
rendered professional design services for the project. Brown did not provide any construction
services. As such § 553.84, Fla. Stat. does not apply to Brown. Furthermore, even if § 553.84, Fla.
Stat. were to apply to Brown, Royal Oak’s allegations fail to conform to the statutory requirements.
A statutory civil action brought pursuant to Florida Statutes § 553.84 requires that a pleading
indicate the specific provision alleged to have been violated. Royal Oak fails to allege the specific
provision of the Florida Building Code that Brown purportedly violated. Accordingly, Count
Thirty-One of the Complaint against Brown should be dismissed.
Royal Oak’s Count Twenty-Nine for Breach of Contract is dismissible. The elements of a
breach of contract action are: (1) a valid contract; (2) a material breach; and (3) damages. Grove
Isle Ass’n, Inc. v. Grove Isle Associates, LLLP, 137 So.3d 1081, 1094 (Fla. 3d DCA 2014)
(quoting Schiffman v. Schiffman, 47 So.3d 925, 927 (Fla. 3d DCA 2010) (quoting Abbott Labs.
Inc. vy. Gen. Elec. Capital, 765 So.2d 737, 740 (Fla. 5 DCA 2000)). The Amended Cross
Complaint fails to allege any material breach falling within Brown’s scope of services. The
derivative defects in Plaintiff's Amended Complaint, paragraphs 51-61, are all construction,
installation, and/or lack of maintenance defects, and not the result of faulty design. See Amend.
Compl. {{[ 281 & 51-61 & Amend. Cross Compl. {§] 14 &15-18. Therefore, Royal Oak has failed
to plead properly the necessary elements required for a Breach of Contract claim against Brown.
Additionally, the indemnification, defense and hold harmless protections that Royal Oak alleges
Brown failed to fulfill in breach of the Contract, requires that the claims arise from Brown’s willful
misconduct, or Brown’s violation of a statutory, regulatory, or common law duty. Royal Oak has
failed to allege any specific act or omission within Brown’s scope of services that constitutes
willful misconduct, or violation of statutory, regulatory, or common law duties. Therefore, Royal
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Oak has failed to successfully and properly allege that the requirements of Paragraph 7 of the
Contract have been fulfilled.
Count Thirty raises a cause of action for Professional Negligence against Brown. Royal
Oak also raises a cause of action for Breach of Contract alleging that Royal Oak and Brown are in
direct contractual privity. Royal Oak does not allege any independent or distinct tort outside the
duties created by the Contract. However, “. . . courts have held that a tort action is barred where a
defendant has not committed a breach of duty apart from a breach of contract.” Tiara
Condominium Ass’n, Inc. v. Marsh & McLennan Companies, Inc., 110 So.3d 399 (Fla. 2013)
(Indem. Ins. Co. v. N.Am. v. Am. Aviation, Inc., 891 So.2d 532, 536-37 (Fla. 2004)). Therefore,
if there is a valid claim against Brown, which there is not, said claim would only arise in contract,
not tort. Therefore, Royal Oak’s professional negligence claim is precluded, and should be
dismissed. However, if the Court chooses to allow the Professional Negligence claim to proceed
even in the presence of a contract, Royal Oak’s Professional Negligence claim is still dismissible.
By Royal Oak’s own admission, Brown’s scope of work was limited to providing professional
design services. Amended Cross-Compl. {| 14 & 244. The Amended Cross Complaint fails to
allege any wrongdoing falling within Brown’s scope of services. Additionally, all defects
derivatively pled are construction, installation, and/or lack of maintenance defects. See Amend.
Compl. §§ 51-61, 270 & 280 & Amend. Cross-Compl. {J 1-18 & 249 - 251. There are no
allegations within the Plaintiffs or Royal Oak’s alleged defects that are based on faulty or
improper design. Id. Thus, Royal Oak has failed to plead the essential elements for a professional
negligence cause of action against Brown.
INTRODUCTION
1 “In its Amended Complaint, Plaintiff [Villas at Emerald Lake Homeowners Association,
Inc.] alleges construction defects at Villas at Emerald Lake in Kissimmee, Osceola County,
4
Florida (hereinafter, the “Property”), arising from the business activities and/or work
and/or furnishing of labor and/or materials by the Crossclaim Defendants.” Amend. Cross-
Compl. 2.
“The claims being made in this Crossclaim are derivative of the claims being made by
Plaintiff against Royal Oak and the Crossclaim Defendants in the Amended Complaint,
with the exception of the claims for breach of contractual duty to defend Royal Oak.”
Amend. Cross-Compl. { 3.
“Upon information and belief, Brown was hired by Royal Oak to design certain
townhome units at the Subject Property.” Amend. Cross-Compl. { 14.
It is alleged that “Royal Oak entered into a . . Professional Services agreement with
Brown”, and that “A copy of the contract between Brown and Royal Oak’s parent
company, Avatar Properties, Inc., is attached [to Royal Oak’s Amended Cross Complaint]
...as Exhibit “J”.” Amend. Cross Compl. {ff 16 & 234.
Pursuant to Exhibit “J” (the “Contract”), Brown’s scope of services included design
architectural services such as signing, sealing and creation of townhome plans, creation of
control drawings for townhomes, creation of alternate elevations, creation of bid set
materials, and marketing materials such as graphic floor plans for Emerald Lake
Townhome models Isabella, San Juan, and Sebastian developed by Royal Oak.
Brown’s scope of services did not include determination, supervision and/or control of any
means, methods, or process of construction.
Brown’s scope of services did not include any construction administration services.
LEGAL STANDARD
A motion to dismiss tests whether the plaintiff has sufficiently stated a cause of action.
Rohatynsky v. Kalogiannis, 763 So. 2d 1270, 1272 (Fla. 4th DCA 2000). When determining the
merits of a motion to dismiss, the trial court's consideration is limited to the four corners of the
complaint, the allegations of which must be accepted as true and considered in the light most
favorable to the nonmoving party. Bell v. Indian River Memorial Hosp., 778 So. 2d 1030, 1032
(Fla. 4th DCA 2001); Alvarez v. E & A Produce Corp., 708 So. 2d 997, 999 (Fla. 3d DCA 1998).
A complaint fails to set forth a short and plain statement of the ultimate facts showing that it is
entitled to relief, and therefore warrants dismissal, when it contains a mere mechanical recitation
of the elements of the cause of action and conclusory allegations that a defendant was engaged in
wrongdoing. Turnberry Vill. N. Tower Condo. Ass'n, Inc. v. Turnberry Vill. S. Tower Condo.
A ss'n, Inc., 224 So. 3d 266 (Fla. 3rd DCA 2017).
To survive such a motion, the complaint must allege a prima facia case upon which liability
and damages can be proven. Alvarez v. E & A Produce Corp., 708 So. 2d 997, 999 (Fla. 3d DCA
1998). Whether a prima facie case has been pled depends on the sufficiency of the claimant’s
allegations of fact, excluding all bare conclusions. Frank v. Lurie, 157 So. 2d 431, 433 (Fla. 2d
DCA 1963). Further, a complaint must contain sufficient allegations to allow a defendant to
intelligently answer. Fountainebleau Hotel Corp. v. Walters, 246 So. 2d 563, 565 (Fla. 1971). A
court must construe a complaint or pleading against the pleader/drafter thereof when a defendant
asks the court to determine whether the necessary allegations have been stated. Matthews v.
Matthews, 122 So. 2d 571 (Fla. 2d DCA 1960).
1. COUNT THIRTY-ONE for Violation of Florida Building Code: Fla. Stat. 553.84 does not
apply to design professionals, and Brown is a design professional. Additionally, Count
THIRTY-ONE should be dismissed because Royal Oak fails to allege any act, error, or
omission on the part of Brown that violates any specific provision.
Florida Statute 553.84 creates a cause of action for violation of the Florida Building Code
(“FBC”).
Brown is a professional architectural firm involved in the development of the
Community. Amend. Cross Compl. §] 14 & 246. Brown’s scope of services was limited to
providing professional design services. Id.
Brown cannot be liable for violations of the FBC because the code does not apply to design
professionals. The interpretation of the FBC is a question of law to be determined by the court.
Edward J. Siebert, A..A. Architect & Planner, P.A. v. Bayport Beach & Tennis Club Ass’n, Inc.
573 So. 2d 889, 892 (Fla.2d DCA 1990). “Any conflicts in interpretation [are] for the court to
resolve and their resolution [is] not a jury issue.” Id.
The FBC controls the “technical aspects” of construction. These provisions “are restricted
to the requirements related to the types of materials used and construction methods and standards
employed in order to meet the criteria specified in the Florida Building Code.” Section 553.73(2),
Fla. Stat. Meanwhile, Section 553.84 provides a statutory civil action against a party who commits
a violation of the Building Code. An action under this section can only be brought “against the
person or party who commits the violation” of the FBC. Sec. 553.84, Fla. Stat. This section has
never been interpreted by a Florida court to apply to design professionals. See H. Hugh
McConnell, Diminished Capacity-Owners' Ability to Sue for Construction Defects in Florida, Fla.
B.J., June 1997, at 64, 68. To that point, on September 24, 2020, the Twentieth Judicial Circuit
granted a Defendant design professional’s Motion to Dismiss with prejudice holding, “There is
no cause of action based on the Florida Building Code against design professionals. Such code
may be used as a standard for professional negligence but does not give rise to a cause of action
itself.” See Lanham, Larry vs T Scholten Builder LLC, et al. 11-2019-CA-002752-0001-XX(L-
300-1020851
Consequently, Brown cannot be held liable under Section 553.84 as a design professional.
Accordingly, Brown respectfully requests that this Court dismiss Count Thirty-One of the
Complaint against Brown with prejudice because the Complaint fails to properly state a cause of
action for violation of the Florida Building Code.
An alternative, but no less applicable grounds for dismissal of COUNT THIRTY-ONE, is
that if Fla. Stat. 553.84 is determined to apply to Brown, which would be improper, a claim under
Fla. Stat. 553.84 still requires a claimant to identify specific violations of the FBC that have been
violated. However, none of the alleged violations of the FBC noted in the Plaintiff's Complaint
fall within Brown’s scope of services. Amend. Compl. {f§ 51 - 61. Further, the Plaintiffs
Amended Complaint does not allege any error or omission with respect to any design or other
professional service provided by Brown in its role as an architectural firm providing design
services for the Community. Because Royal Oak’s Amended Cross Complaint only includes
derivatively pled defects from Plaintiff's Amended Complaint, and no defects unique to Royal
Oka’s Amended Cross Complaint, Royal Oak does not allege any unique defects that are not pled
by the Plaintiff. Amend. Cross Compl. {J 3, 236, 237, 250 & 259. As such, Royal Oak fails to
allege Brown’s professional services violated any provision of the FBC required for a claim under
Fla. Stat. § 553.84.
Il. COUNT TWENTY-NINE alleging Breach of Contract should be dismissed because Brown
was not the proximate cause of any alleged damages, because Royal Oak fails to allege the
necessary elements, fails to allege any specific willful misconduct or violation of statutory,
regulatory, or common law duties by Brown.
As previously discussed, Royal Oak alleges that Royal Oak directly contracted with
Brown, (the “Contract”). Amend. Cross Compl. {| 234 & Exhibit “J”.! The elements of a breach
of contract action are: (1) a valid contract; (2) a material breach; and (3) damages. Grove Isle
Ass’n, Inc. v. Grove Isle Associates, LLLP, 137 So.3d 1081, 1094 (Fla. 3d DCA 2014) (quoting
Schiffman v. Schiffman, 47 So.3d 925, 927 (Fla. 3d DCA 2010) (quoting Abbott Labs, Inc. v. Gen.
Elec. Capital, 765 So.2d 737, 740 (Fla. Sth DCA 2000)).
Royal Oak first alleges a derivative breach of contract claim, in that to the extent any of
Plaintiff's alleged defects are proven to be caused by Brown, then those proved defects, allegedly
constitute a material breach of the Contract. Amend. Cross Compl. {236 & 237. Secondly, Royal
Oak’s breach of contract cause of action alleges that Brown breached its contractual obligation to
defend and indemnify Royal Oak against Plaintiff's claims. Amend. Cross Compl. {ff 238 & 240.
The provision at issue, only requires indemnification, defense and hold harmless protection from
Brown, if the claim “. . . arises from or in connection with (a) . . . [Brown’s] active negligence or
willful misconduct; or (b) the breach of a statutory, regulatory or common law duty or obligation
on the part of .. . [Brown]”. Exhibit “J” to the Amend. Cross Compl., pg. 3, | 7. The Contract
defines Brown’s design-only scope of services as signing and sealing single townhome plans,
creation of townhome control drawings, alternate elevations, plan derivations, bid set creation, and
graphic floor plans for use in marketing efforts.
1 While the Contract does not name Royal Oak, it is alleged that “Royal Oak is a wholly-owned subsidiary and agent of Avatar Properties, Inc.
"and Avatar Properties, Ine. is a party to the Contract. Amend, Cross Compl. 234
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The contractual defense, indemnity, and hold harmless protection allegedly in favor of
Royal Oak, is limited to allegations of ‘active negligence’, ‘willful misconduct’, or ‘breach of a
statutory, regulatory or common law duty or obligation’ within Brown’s scope of services.
However, once again, the Amended Cross Complaint fails to allege specific action or inaction by
Brown that constitutes a material breach of the Contract. The Amended Cross Complaint fails to
allege specific action or inaction by Brown that constitutes willful misconduct. Moreover, the
Amended Cross Complaint fails to allege specific action or inaction by Brown that constitutes a
breach of a statutory, regulatory, or common law duty or obligation. Additionally, the derivatively
included allegations of Plaintiff's Amended Complaint, and the defects alleged at paragraphs 51-
61, do not constitute active negligence, willful misconduct, breach of a statutory, regulatory, or
common law duty or obligation, and/or material breach by Brown within Brown’s scope of
services. See Amend. Compl. {J 281 & 51-61 & Amend. Cross Compl. {J 14 &15-18. There are
no allegations within the Plaintiff's or Royal Oak’s alleged defects that are based on faulty or
improper design resulting from willful misconduct or breach of a statutory, regulatory, or common
law duty. Id. There are no allegations in the Amended Complaint or Amended Cross Complaint
that a specific action or inaction of Brown constituting willful misconduct or violation of a
statutory, regulatory, or common law duty that also caused any specific alleged damage endured
by Royal Oak. Therefore, the indemnification, defense and hold harmless protection agreed upon
in Paragraph 7 of the Contract does not apply. Thus, the essential elements for a Breach of contract
claim, namely the material breach of the contractual obligation to defend, indemnify and hold
harmless has not been properly plead. Royal Oak’s breach of contract claim fails due to lack of
essential elements of the breach of Contract cause of action. Accordingly, Brown respectfully
requests that this Court dismiss Count Twenty-Nine of the Amended Cross Complaint against
Brown.
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III. COUNT THIRTY alleging Professional Negligence should be dismissed as the
proper cause of action, if one exists, sounds in Contract, not in tort, Royal Oak has not alleged
any facts that could support a separate and distinct tort, and Royal Oak fails to allege the
necessary elements for a claim of Professional Negligence.
Royal Oak alleges that Royal Oak directly contracted with Brown, a copy of said contract
is allegedly attached and included in Royal Oak’s Amended Cross Complaint as Exhibit “J” (the
“Contract”). Amend. Cross Compl. {| 234 & Exhibit “J”.? The Contract defines Brown’s scope of.
services as signing and sealing townhome plans, creating townhome control drawings, alternate
elevations, plan derivations, bid set creation, and graphic floor plans for use in marketing efforts.
In Count Thirty, Royal Oak alleges Professional Negligence against Brown even though
Royal Oak and Brown are allegedly in direct contractual privity. Taking all allegations as true, the
only involvement Brown had with the Community resulted from the Contract. Royal Oak does not
allege any independent or distinct tort outside the duties created by the Contract that Brown has
allegedly performed negligently or negligently omitted. However, “. . . courts have held that a tort
action is barred where a defendant has not committed a breach of duty apart from a breach of
contract.” Tiara Condominium Ass’n, Inc. v. Marsh & McLennan Companies, Inc., 110 So.3d 399
(Fla. 2013) (Indem. Ins. Co. v. N.Am. v. Am. Aviation, Inc., 891 So.2d 532, 536-37 (Fla. 2004)).
Therefore, if there is a valid claim against Brown, which there is not, said claim would only arise
in contract, not tort. Therefore, Royal Oak’s professional negligence claim is precluded, and should
be dismissed.
In the alternative, if the Court allows Royal Oak’s Professional Negligence claim to
continue despite the allegations of direct contractual privity, Royal Oak has still failed to plead
properly the essential elements of a Professional Negligence cause of action as to Brown. Royal
2 As previously noted, while the Contract does not name Royal Oak, it is alleged that “Royal Oak is a wholly-owned subsidiary and agent of
Avatar Properties, Ine. ”, and Avatar Properties, Inc. is a party to the Contract. Amend. Cross Compl. §| 234.
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Oak alleges in pertinent part that Brown breached the standard of care in performance of
construction administration duties to ensure that the work identified in the plans was performed in
accordance with the permitted plans. Amend. Cross Compl. § 248. Additionally, Royal Oak also
alleges, derivatively, that Brown breached its duty to Royal Oak by inspecting, supervising, and
approving work that was not in accordance with the permitted plans. Amend. Cross Compl. {| 248.
To state a cause of action for negligence, the following elements are required: (1) a legal
duty; (2) a breach of this duty; (3) a causal connection between the conduct and the resulting injury;
and (4) some actual loss or damage flowing to the plaintiffs legally protected interest as a result
of the alleged breach of the legal duty. “Further, where the negligent party is a professional, the
law imposes a duty to perform the requested services in accordance with the standard of care used
by similar professionals in the community under similar circumstances.” Moransais v. Heathman,
744 So. 2d 973, 975-76 (Fla. 1999).
Royal Oak fails to properly allege the necessary elements of duty, breach, and causal
connection. As a threshold matter, by Royal Oak’s own admission, Brown’s scope of work was
limited to providing professional design services, and did not include construction administration
services, work approvals, or any determination, control, or supervision of construction means,
methods, or processes. Therefore, Brown had no legal duty to perform construction administration,
inspection, supervision, or proper approval of work, and Royal Oak’s alleged damages are due to
causes that do not stem from Brown. Amend. Cross-Compl. {J 14 & Exhibit “J”.
Additionally, the Amended Cross Complaint fails to allege any breach of a legal duty,
such as a specific negligent act or omission falling within Brown’s scope of services. The alleged
defects derived solely from Plaintiff's Amended Complaint, are all construction, installation,
and/or lack of maintenance defects, and not within Brown’s scope of services. See Amend. Compl.
{| 281 & 51-61 & Amend. Cross Compl. {ff 14 &15-18. Moreover, there are also no allegations
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of ultimate fact in the Amended Complaint or Amended Cross Complaint that a specific action or
inaction of Brown caused any specific alleged damage endured by Royal Oak. Thus, the essential
elements for a professional negligence cause of action against Brown, specifically 1) a legal duty
as to Brown, 2)Brown’s breach of that identified legal duty, and 3) a causal connection between
Brown’s alleged breach and the alleged damages, has not been properly pled. Accordingly, Brown
respectfully requests that this Court dismiss Count Thirty of the Amended Cross Complaint against
Brown because: 1) if there is a valid claim, which there is not, said claim would only arise in
contract; and 2) Royal Oak’s claim of professional negligence against Brown fails for lack of
essential elements.
MOTION TO STRIKE
1 Motion to Strike Claims for Prejudgment Interest
Royal Oak alleges entitlement to pre-judgment interest in the WHEREFOE clause of all
three counts, Twenty-Nine, Thirty, and Thirty-One, that pertain to Brown. As discussed previously
that the claims alleged against Brown by Royal Oak are Breach of Contract, Professional
Negligence, and Statutory Cause of Action Pursuant to § 553.84, Fla. Stat.
Prejudgment interest is generally only allowed on liquidated damages. Cioffe v. Morris, 676
F.2d 539 (11th Cir. 1982); Burkhart v. Kroeger Concrete Products, Inc., 468 So. 2d 469 (Fla. 4th
D.C.A. 1985). A claim is unliquidated if the amount due is contested; only becoming certain and
therefore unliquidated when finally fixed and determined by the trier of fact. Hurley v. Slingerland,
480 So. 2d 104 (Fla. 4th D.C.A. 1985). “The ‘Better rule’ for assessing prejudgment interest is
that ‘a claim becomes liquidated and susceptible of prejudgment interest when a verdict has the
effect of fixing damages as of a prior date.”” Bosem v. Musa Holdings, Inc., 46 So. 3d 42, (Fla.
2010) (Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212, 214 (Fla. 1985) (qouting Bergen
Brunswig Corp. v. State, 415 So.2d 765 (Fla. 18" DCA 1982)).
13
In the instant matter, the causes of action that include a demand for pre-judgment interest have
damages that are unliquidated and have not been fixed or determined by a trier of fact as to any
prior date. Therefore, the Royal Oak fails to allege any legal basis for entitlement to prejudgment
interest. Accordingly, Royal Oak’s claims for prejudgment interest against Brown should be
stricken.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been electronically
served via the Florida E-Filing Portal to counsel of record for the parties on the attached Service
List, this 11th day of June, 2021.
MILBER MAKRIS PLOUSADIS & SEIDEN, LLP
Attorneys for Defendant, Brown + Company
Architecture, Inc.
1900 NW Corporate Blvd., East Tower, Suite 440
Boca Raton, Florida 33431
beald: ron@milbermakris.com
dhi milbermakris.com
acreech@milbermakris.com
Telephone: 561-994-7310
Facsimile: 561-994-7313
By: _S:/ Audra R. Creech
Bruce R. Calderon
Florida Bar No. 50448
D. Bryan Hill
Florida Bar No. 113687
Audra R. Creech
Florida Bar No. 122373
SERVICE LIST
Phillip E. Joseph, Esq.
Evan J. Small, Esq.
Jeffrey A. Widelitz Esq.
Nicholas B. Vargo, Esq.
BALL JANIK, LLP
14
201 East Pine Street — Suite 600
Orlando, FL 32801
pioseph@balijanik.com
esmall@balljanik.com
jwidelitz@balljanik.com
nyargo@ballianik.or
ypalmer@ballianik.com
miwise @pall anik.com
orlandodocket@balljanik.com
Counsel for Plaintiff, Villas at Emerald
Lake Homeowners Association, Inc.
Thamir A. R. Kaddouri, Jr., Esq.
LAW OFFICE OF THAMIR ALR.
KADDOURI, JR., P.A.
3220 West Cypress Street
Tampa, FL 33607
Counsel for Defendant, Imperial Building Corporation
Peter J. Kapsales, Esq.
Margaret M. Efta, Esq.
MILNE LAW GROUP, P.A.
301 East Pine Street — Suite 525
Orlando, FL 32801
pkapsales@milnclawgroup.com
mefta@milnelawgroup.com
eservice(@milnelawgroup.com
Counsel for Defendant, Weathermaster Building Products, Inc.
Robin H. Leavengood, Esq.
Lannie D. Hough, Jr., Esq.
CARLTON FIELDS, P.A.
4221 W. Boy Scout Boulevard
Tampa, FL 33607-5780
rleavengood@carltonfields.com
brosa@carltonfields.com
lhough@carltonfields.cor
nbonilla@carltonfields.com
ywilliams@ecarltonfields.com
Counsel for Defendant, Royal Oak Homes, LLC
15
Paul Sidney Elliott, Esq.
P. O. Box 274204
Tampa, FL 33688-4204
pse@psejd.con
Counsel for Defendant, Hugh MacDonald Construction, Inc. (HMC)
Denise M. Anderson, Esq.
Kate F. Gaset, Esq.
BUTLER WEIHMULLER KATZ CRAIG LLP
400 North Ashley Drive — Suite 2300
Tampa, FL 33602
danderson@butler. legal
kgaset@pbutler.legal
ve
acobs@butler legal
mmilligan@ butler. legal
Counsel for Defendant, Don King’s Concrete, Inc.
Jayne Ann Pittman, Esq.
CONROY SIMBERG
Two South Orange Avenue — Suite 300
Orlando, FL 32801
eserviccorl@conrovsimberg.com
jpittman@conroysimberg.com
mmaitland@conroysimberg.com
Counsel for Defendant, Advanced Wrapping and Concrete Solutions
Of Central Florida, Inc.
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Preview
Filing # 128599447 E-Filed 06/11/2021 02:41:03 PM IN THE CIRCUIT COURT OF THE 97% JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NO.: 2020-CA-002942-ON VILLAS AT EMERALD LAKE HOMEONWERS ASSOCIATION, INC., a Florida not for profit corporation, Plaintiff, Vv. 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; Defendant. / ROYAL OAK HOMES, LLC, a Florida limited liability company; Crossclaim Plaintiff, Vv. ADVANCED WRAPPING AND CONCRETE SOLUTION 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; WOLF'S IRRIGATION & LANDSCAPING, INC., a Florida corporation; BROWN+ COMPANY ARCHITECTURE, INC., a Florida corporation; Crossclaim Defendants / DEFENDANT, BROWN + COMPANY ARCHITECTURE, INC.’S. MOTION TO DISMISS COUNTS TWENTY-NINE, THIRTY, AND THIRTY-ONE OF ROYAL OAK’S AMENDED CROSS-COMPLAINT AND MOTION TO STRIKE CLAIMS FOR PREJUGMENT INTEREST Pursuant to the Florida Rules of Civil Procedure, specifically Rules 1.110 and 1.140, Crossclaim Defendant, BROWN + COMPANY ARCHITECTURE, INC., (“Brown”) respectfully moves this Court for entry of an Order to dismiss Crossclaim Plaintiff, ROYAL OAK HOMES LLC f/k/a AVH ACQUISITION, LLC ’s (“Royal Oak”) Amended Cross-Complaint and for the entry of an Order striking Royal Oak’s claims for pre-judgment interest, and in support thereof states as follows: SUMMARY OF ARGUMENTS Count Thirty-One, Royal Oak’s Statutory Cause of Action Pursuant to § 553.84, Fla. Stat., fails because the statute does not apply to professionals rendering design services. Rather, courts in Florida have interpreted § 553.84, Fla. Stat. as applying only to entities rendering construction services, i.e., contractors and construction trades. Brown is a professional architectural firm that rendered professional design services for the project. Brown did not provide any construction services. As such § 553.84, Fla. Stat. does not apply to Brown. Furthermore, even if § 553.84, Fla. Stat. were to apply to Brown, Royal Oak’s allegations fail to conform to the statutory requirements. A statutory civil action brought pursuant to Florida Statutes § 553.84 requires that a pleading indicate the specific provision alleged to have been violated. Royal Oak fails to allege the specific provision of the Florida Building Code that Brown purportedly violated. Accordingly, Count Thirty-One of the Complaint against Brown should be dismissed. Royal Oak’s Count Twenty-Nine for Breach of Contract is dismissible. The elements of a breach of contract action are: (1) a valid contract; (2) a material breach; and (3) damages. Grove Isle Ass’n, Inc. v. Grove Isle Associates, LLLP, 137 So.3d 1081, 1094 (Fla. 3d DCA 2014) (quoting Schiffman v. Schiffman, 47 So.3d 925, 927 (Fla. 3d DCA 2010) (quoting Abbott Labs. Inc. vy. Gen. Elec. Capital, 765 So.2d 737, 740 (Fla. 5 DCA 2000)). The Amended Cross Complaint fails to allege any material breach falling within Brown’s scope of services. The derivative defects in Plaintiff's Amended Complaint, paragraphs 51-61, are all construction, installation, and/or lack of maintenance defects, and not the result of faulty design. See Amend. Compl. {{[ 281 & 51-61 & Amend. Cross Compl. {§] 14 &15-18. Therefore, Royal Oak has failed to plead properly the necessary elements required for a Breach of Contract claim against Brown. Additionally, the indemnification, defense and hold harmless protections that Royal Oak alleges Brown failed to fulfill in breach of the Contract, requires that the claims arise from Brown’s willful misconduct, or Brown’s violation of a statutory, regulatory, or common law duty. Royal Oak has failed to allege any specific act or omission within Brown’s scope of services that constitutes willful misconduct, or violation of statutory, regulatory, or common law duties. Therefore, Royal 3 Oak has failed to successfully and properly allege that the requirements of Paragraph 7 of the Contract have been fulfilled. Count Thirty raises a cause of action for Professional Negligence against Brown. Royal Oak also raises a cause of action for Breach of Contract alleging that Royal Oak and Brown are in direct contractual privity. Royal Oak does not allege any independent or distinct tort outside the duties created by the Contract. However, “. . . courts have held that a tort action is barred where a defendant has not committed a breach of duty apart from a breach of contract.” Tiara Condominium Ass’n, Inc. v. Marsh & McLennan Companies, Inc., 110 So.3d 399 (Fla. 2013) (Indem. Ins. Co. v. N.Am. v. Am. Aviation, Inc., 891 So.2d 532, 536-37 (Fla. 2004)). Therefore, if there is a valid claim against Brown, which there is not, said claim would only arise in contract, not tort. Therefore, Royal Oak’s professional negligence claim is precluded, and should be dismissed. However, if the Court chooses to allow the Professional Negligence claim to proceed even in the presence of a contract, Royal Oak’s Professional Negligence claim is still dismissible. By Royal Oak’s own admission, Brown’s scope of work was limited to providing professional design services. Amended Cross-Compl. {| 14 & 244. The Amended Cross Complaint fails to allege any wrongdoing falling within Brown’s scope of services. Additionally, all defects derivatively pled are construction, installation, and/or lack of maintenance defects. See Amend. Compl. §§ 51-61, 270 & 280 & Amend. Cross-Compl. {J 1-18 & 249 - 251. There are no allegations within the Plaintiffs or Royal Oak’s alleged defects that are based on faulty or improper design. Id. Thus, Royal Oak has failed to plead the essential elements for a professional negligence cause of action against Brown. INTRODUCTION 1 “In its Amended Complaint, Plaintiff [Villas at Emerald Lake Homeowners Association, Inc.] alleges construction defects at Villas at Emerald Lake in Kissimmee, Osceola County, 4 Florida (hereinafter, the “Property”), arising from the business activities and/or work and/or furnishing of labor and/or materials by the Crossclaim Defendants.” Amend. Cross- Compl. 2. “The claims being made in this Crossclaim are derivative of the claims being made by Plaintiff against Royal Oak and the Crossclaim Defendants in the Amended Complaint, with the exception of the claims for breach of contractual duty to defend Royal Oak.” Amend. Cross-Compl. { 3. “Upon information and belief, Brown was hired by Royal Oak to design certain townhome units at the Subject Property.” Amend. Cross-Compl. { 14. It is alleged that “Royal Oak entered into a . . Professional Services agreement with Brown”, and that “A copy of the contract between Brown and Royal Oak’s parent company, Avatar Properties, Inc., is attached [to Royal Oak’s Amended Cross Complaint] ...as Exhibit “J”.” Amend. Cross Compl. {ff 16 & 234. Pursuant to Exhibit “J” (the “Contract”), Brown’s scope of services included design architectural services such as signing, sealing and creation of townhome plans, creation of control drawings for townhomes, creation of alternate elevations, creation of bid set materials, and marketing materials such as graphic floor plans for Emerald Lake Townhome models Isabella, San Juan, and Sebastian developed by Royal Oak. Brown’s scope of services did not include determination, supervision and/or control of any means, methods, or process of construction. Brown’s scope of services did not include any construction administration services. LEGAL STANDARD A motion to dismiss tests whether the plaintiff has sufficiently stated a cause of action. Rohatynsky v. Kalogiannis, 763 So. 2d 1270, 1272 (Fla. 4th DCA 2000). When determining the merits of a motion to dismiss, the trial court's consideration is limited to the four corners of the complaint, the allegations of which must be accepted as true and considered in the light most favorable to the nonmoving party. Bell v. Indian River Memorial Hosp., 778 So. 2d 1030, 1032 (Fla. 4th DCA 2001); Alvarez v. E & A Produce Corp., 708 So. 2d 997, 999 (Fla. 3d DCA 1998). A complaint fails to set forth a short and plain statement of the ultimate facts showing that it is entitled to relief, and therefore warrants dismissal, when it contains a mere mechanical recitation of the elements of the cause of action and conclusory allegations that a defendant was engaged in wrongdoing. Turnberry Vill. N. Tower Condo. Ass'n, Inc. v. Turnberry Vill. S. Tower Condo. A ss'n, Inc., 224 So. 3d 266 (Fla. 3rd DCA 2017). To survive such a motion, the complaint must allege a prima facia case upon which liability and damages can be proven. Alvarez v. E & A Produce Corp., 708 So. 2d 997, 999 (Fla. 3d DCA 1998). Whether a prima facie case has been pled depends on the sufficiency of the claimant’s allegations of fact, excluding all bare conclusions. Frank v. Lurie, 157 So. 2d 431, 433 (Fla. 2d DCA 1963). Further, a complaint must contain sufficient allegations to allow a defendant to intelligently answer. Fountainebleau Hotel Corp. v. Walters, 246 So. 2d 563, 565 (Fla. 1971). A court must construe a complaint or pleading against the pleader/drafter thereof when a defendant asks the court to determine whether the necessary allegations have been stated. Matthews v. Matthews, 122 So. 2d 571 (Fla. 2d DCA 1960). 1. COUNT THIRTY-ONE for Violation of Florida Building Code: Fla. Stat. 553.84 does not apply to design professionals, and Brown is a design professional. Additionally, Count THIRTY-ONE should be dismissed because Royal Oak fails to allege any act, error, or omission on the part of Brown that violates any specific provision. Florida Statute 553.84 creates a cause of action for violation of the Florida Building Code (“FBC”). Brown is a professional architectural firm involved in the development of the Community. Amend. Cross Compl. §] 14 & 246. Brown’s scope of services was limited to providing professional design services. Id. Brown cannot be liable for violations of the FBC because the code does not apply to design professionals. The interpretation of the FBC is a question of law to be determined by the court. Edward J. Siebert, A..A. Architect & Planner, P.A. v. Bayport Beach & Tennis Club Ass’n, Inc. 573 So. 2d 889, 892 (Fla.2d DCA 1990). “Any conflicts in interpretation [are] for the court to resolve and their resolution [is] not a jury issue.” Id. The FBC controls the “technical aspects” of construction. These provisions “are restricted to the requirements related to the types of materials used and construction methods and standards employed in order to meet the criteria specified in the Florida Building Code.” Section 553.73(2), Fla. Stat. Meanwhile, Section 553.84 provides a statutory civil action against a party who commits a violation of the Building Code. An action under this section can only be brought “against the person or party who commits the violation” of the FBC. Sec. 553.84, Fla. Stat. This section has never been interpreted by a Florida court to apply to design professionals. See H. Hugh McConnell, Diminished Capacity-Owners' Ability to Sue for Construction Defects in Florida, Fla. B.J., June 1997, at 64, 68. To that point, on September 24, 2020, the Twentieth Judicial Circuit granted a Defendant design professional’s Motion to Dismiss with prejudice holding, “There is no cause of action based on the Florida Building Code against design professionals. Such code may be used as a standard for professional negligence but does not give rise to a cause of action itself.” See Lanham, Larry vs T Scholten Builder LLC, et al. 11-2019-CA-002752-0001-XX(L- 300-1020851 Consequently, Brown cannot be held liable under Section 553.84 as a design professional. Accordingly, Brown respectfully requests that this Court dismiss Count Thirty-One of the Complaint against Brown with prejudice because the Complaint fails to properly state a cause of action for violation of the Florida Building Code. An alternative, but no less applicable grounds for dismissal of COUNT THIRTY-ONE, is that if Fla. Stat. 553.84 is determined to apply to Brown, which would be improper, a claim under Fla. Stat. 553.84 still requires a claimant to identify specific violations of the FBC that have been violated. However, none of the alleged violations of the FBC noted in the Plaintiff's Complaint fall within Brown’s scope of services. Amend. Compl. {f§ 51 - 61. Further, the Plaintiffs Amended Complaint does not allege any error or omission with respect to any design or other professional service provided by Brown in its role as an architectural firm providing design services for the Community. Because Royal Oak’s Amended Cross Complaint only includes derivatively pled defects from Plaintiff's Amended Complaint, and no defects unique to Royal Oka’s Amended Cross Complaint, Royal Oak does not allege any unique defects that are not pled by the Plaintiff. Amend. Cross Compl. {J 3, 236, 237, 250 & 259. As such, Royal Oak fails to allege Brown’s professional services violated any provision of the FBC required for a claim under Fla. Stat. § 553.84. Il. COUNT TWENTY-NINE alleging Breach of Contract should be dismissed because Brown was not the proximate cause of any alleged damages, because Royal Oak fails to allege the necessary elements, fails to allege any specific willful misconduct or violation of statutory, regulatory, or common law duties by Brown. As previously discussed, Royal Oak alleges that Royal Oak directly contracted with Brown, (the “Contract”). Amend. Cross Compl. {| 234 & Exhibit “J”.! The elements of a breach of contract action are: (1) a valid contract; (2) a material breach; and (3) damages. Grove Isle Ass’n, Inc. v. Grove Isle Associates, LLLP, 137 So.3d 1081, 1094 (Fla. 3d DCA 2014) (quoting Schiffman v. Schiffman, 47 So.3d 925, 927 (Fla. 3d DCA 2010) (quoting Abbott Labs, Inc. v. Gen. Elec. Capital, 765 So.2d 737, 740 (Fla. Sth DCA 2000)). Royal Oak first alleges a derivative breach of contract claim, in that to the extent any of Plaintiff's alleged defects are proven to be caused by Brown, then those proved defects, allegedly constitute a material breach of the Contract. Amend. Cross Compl. {236 & 237. Secondly, Royal Oak’s breach of contract cause of action alleges that Brown breached its contractual obligation to defend and indemnify Royal Oak against Plaintiff's claims. Amend. Cross Compl. {ff 238 & 240. The provision at issue, only requires indemnification, defense and hold harmless protection from Brown, if the claim “. . . arises from or in connection with (a) . . . [Brown’s] active negligence or willful misconduct; or (b) the breach of a statutory, regulatory or common law duty or obligation on the part of .. . [Brown]”. Exhibit “J” to the Amend. Cross Compl., pg. 3, | 7. The Contract defines Brown’s design-only scope of services as signing and sealing single townhome plans, creation of townhome control drawings, alternate elevations, plan derivations, bid set creation, and graphic floor plans for use in marketing efforts. 1 While the Contract does not name Royal Oak, it is alleged that “Royal Oak is a wholly-owned subsidiary and agent of Avatar Properties, Inc. "and Avatar Properties, Ine. is a party to the Contract. Amend, Cross Compl. 234 9 The contractual defense, indemnity, and hold harmless protection allegedly in favor of Royal Oak, is limited to allegations of ‘active negligence’, ‘willful misconduct’, or ‘breach of a statutory, regulatory or common law duty or obligation’ within Brown’s scope of services. However, once again, the Amended Cross Complaint fails to allege specific action or inaction by Brown that constitutes a material breach of the Contract. The Amended Cross Complaint fails to allege specific action or inaction by Brown that constitutes willful misconduct. Moreover, the Amended Cross Complaint fails to allege specific action or inaction by Brown that constitutes a breach of a statutory, regulatory, or common law duty or obligation. Additionally, the derivatively included allegations of Plaintiff's Amended Complaint, and the defects alleged at paragraphs 51- 61, do not constitute active negligence, willful misconduct, breach of a statutory, regulatory, or common law duty or obligation, and/or material breach by Brown within Brown’s scope of services. See Amend. Compl. {J 281 & 51-61 & Amend. Cross Compl. {J 14 &15-18. There are no allegations within the Plaintiff's or Royal Oak’s alleged defects that are based on faulty or improper design resulting from willful misconduct or breach of a statutory, regulatory, or common law duty. Id. There are no allegations in the Amended Complaint or Amended Cross Complaint that a specific action or inaction of Brown constituting willful misconduct or violation of a statutory, regulatory, or common law duty that also caused any specific alleged damage endured by Royal Oak. Therefore, the indemnification, defense and hold harmless protection agreed upon in Paragraph 7 of the Contract does not apply. Thus, the essential elements for a Breach of contract claim, namely the material breach of the contractual obligation to defend, indemnify and hold harmless has not been properly plead. Royal Oak’s breach of contract claim fails due to lack of essential elements of the breach of Contract cause of action. Accordingly, Brown respectfully requests that this Court dismiss Count Twenty-Nine of the Amended Cross Complaint against Brown. 10 III. COUNT THIRTY alleging Professional Negligence should be dismissed as the proper cause of action, if one exists, sounds in Contract, not in tort, Royal Oak has not alleged any facts that could support a separate and distinct tort, and Royal Oak fails to allege the necessary elements for a claim of Professional Negligence. Royal Oak alleges that Royal Oak directly contracted with Brown, a copy of said contract is allegedly attached and included in Royal Oak’s Amended Cross Complaint as Exhibit “J” (the “Contract”). Amend. Cross Compl. {| 234 & Exhibit “J”.? The Contract defines Brown’s scope of. services as signing and sealing townhome plans, creating townhome control drawings, alternate elevations, plan derivations, bid set creation, and graphic floor plans for use in marketing efforts. In Count Thirty, Royal Oak alleges Professional Negligence against Brown even though Royal Oak and Brown are allegedly in direct contractual privity. Taking all allegations as true, the only involvement Brown had with the Community resulted from the Contract. Royal Oak does not allege any independent or distinct tort outside the duties created by the Contract that Brown has allegedly performed negligently or negligently omitted. However, “. . . courts have held that a tort action is barred where a defendant has not committed a breach of duty apart from a breach of contract.” Tiara Condominium Ass’n, Inc. v. Marsh & McLennan Companies, Inc., 110 So.3d 399 (Fla. 2013) (Indem. Ins. Co. v. N.Am. v. Am. Aviation, Inc., 891 So.2d 532, 536-37 (Fla. 2004)). Therefore, if there is a valid claim against Brown, which there is not, said claim would only arise in contract, not tort. Therefore, Royal Oak’s professional negligence claim is precluded, and should be dismissed. In the alternative, if the Court allows Royal Oak’s Professional Negligence claim to continue despite the allegations of direct contractual privity, Royal Oak has still failed to plead properly the essential elements of a Professional Negligence cause of action as to Brown. Royal 2 As previously noted, while the Contract does not name Royal Oak, it is alleged that “Royal Oak is a wholly-owned subsidiary and agent of Avatar Properties, Ine. ”, and Avatar Properties, Inc. is a party to the Contract. Amend. Cross Compl. §| 234. 11 Oak alleges in pertinent part that Brown breached the standard of care in performance of construction administration duties to ensure that the work identified in the plans was performed in accordance with the permitted plans. Amend. Cross Compl. § 248. Additionally, Royal Oak also alleges, derivatively, that Brown breached its duty to Royal Oak by inspecting, supervising, and approving work that was not in accordance with the permitted plans. Amend. Cross Compl. {| 248. To state a cause of action for negligence, the following elements are required: (1) a legal duty; (2) a breach of this duty; (3) a causal connection between the conduct and the resulting injury; and (4) some actual loss or damage flowing to the plaintiffs legally protected interest as a result of the alleged breach of the legal duty. “Further, where the negligent party is a professional, the law imposes a duty to perform the requested services in accordance with the standard of care used by similar professionals in the community under similar circumstances.” Moransais v. Heathman, 744 So. 2d 973, 975-76 (Fla. 1999). Royal Oak fails to properly allege the necessary elements of duty, breach, and causal connection. As a threshold matter, by Royal Oak’s own admission, Brown’s scope of work was limited to providing professional design services, and did not include construction administration services, work approvals, or any determination, control, or supervision of construction means, methods, or processes. Therefore, Brown had no legal duty to perform construction administration, inspection, supervision, or proper approval of work, and Royal Oak’s alleged damages are due to causes that do not stem from Brown. Amend. Cross-Compl. {J 14 & Exhibit “J”. Additionally, the Amended Cross Complaint fails to allege any breach of a legal duty, such as a specific negligent act or omission falling within Brown’s scope of services. The alleged defects derived solely from Plaintiff's Amended Complaint, are all construction, installation, and/or lack of maintenance defects, and not within Brown’s scope of services. See Amend. Compl. {| 281 & 51-61 & Amend. Cross Compl. {ff 14 &15-18. Moreover, there are also no allegations 12 of ultimate fact in the Amended Complaint or Amended Cross Complaint that a specific action or inaction of Brown caused any specific alleged damage endured by Royal Oak. Thus, the essential elements for a professional negligence cause of action against Brown, specifically 1) a legal duty as to Brown, 2)Brown’s breach of that identified legal duty, and 3) a causal connection between Brown’s alleged breach and the alleged damages, has not been properly pled. Accordingly, Brown respectfully requests that this Court dismiss Count Thirty of the Amended Cross Complaint against Brown because: 1) if there is a valid claim, which there is not, said claim would only arise in contract; and 2) Royal Oak’s claim of professional negligence against Brown fails for lack of essential elements. MOTION TO STRIKE 1 Motion to Strike Claims for Prejudgment Interest Royal Oak alleges entitlement to pre-judgment interest in the WHEREFOE clause of all three counts, Twenty-Nine, Thirty, and Thirty-One, that pertain to Brown. As discussed previously that the claims alleged against Brown by Royal Oak are Breach of Contract, Professional Negligence, and Statutory Cause of Action Pursuant to § 553.84, Fla. Stat. Prejudgment interest is generally only allowed on liquidated damages. Cioffe v. Morris, 676 F.2d 539 (11th Cir. 1982); Burkhart v. Kroeger Concrete Products, Inc., 468 So. 2d 469 (Fla. 4th D.C.A. 1985). A claim is unliquidated if the amount due is contested; only becoming certain and therefore unliquidated when finally fixed and determined by the trier of fact. Hurley v. Slingerland, 480 So. 2d 104 (Fla. 4th D.C.A. 1985). “The ‘Better rule’ for assessing prejudgment interest is that ‘a claim becomes liquidated and susceptible of prejudgment interest when a verdict has the effect of fixing damages as of a prior date.”” Bosem v. Musa Holdings, Inc., 46 So. 3d 42, (Fla. 2010) (Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212, 214 (Fla. 1985) (qouting Bergen Brunswig Corp. v. State, 415 So.2d 765 (Fla. 18" DCA 1982)). 13 In the instant matter, the causes of action that include a demand for pre-judgment interest have damages that are unliquidated and have not been fixed or determined by a trier of fact as to any prior date. Therefore, the Royal Oak fails to allege any legal basis for entitlement to prejudgment interest. Accordingly, Royal Oak’s claims for prejudgment interest against Brown should be stricken. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been electronically served via the Florida E-Filing Portal to counsel of record for the parties on the attached Service List, this 11th day of June, 2021. MILBER MAKRIS PLOUSADIS & SEIDEN, LLP Attorneys for Defendant, Brown + Company Architecture, Inc. 1900 NW Corporate Blvd., East Tower, Suite 440 Boca Raton, Florida 33431 beald: ron@milbermakris.com dhi milbermakris.com acreech@milbermakris.com Telephone: 561-994-7310 Facsimile: 561-994-7313 By: _S:/ Audra R. Creech Bruce R. Calderon Florida Bar No. 50448 D. Bryan Hill Florida Bar No. 113687 Audra R. Creech Florida Bar No. 122373 SERVICE LIST Phillip E. Joseph, Esq. Evan J. Small, Esq. Jeffrey A. Widelitz Esq. Nicholas B. Vargo, Esq. BALL JANIK, LLP 14 201 East Pine Street — Suite 600 Orlando, FL 32801 pioseph@balijanik.com esmall@balljanik.com jwidelitz@balljanik.com nyargo@ballianik.or ypalmer@ballianik.com miwise @pall anik.com orlandodocket@balljanik.com Counsel for Plaintiff, Villas at Emerald Lake Homeowners Association, Inc. Thamir A. R. Kaddouri, Jr., Esq. LAW OFFICE OF THAMIR ALR. KADDOURI, JR., P.A. 3220 West Cypress Street Tampa, FL 33607 Counsel for Defendant, Imperial Building Corporation Peter J. Kapsales, Esq. Margaret M. Efta, Esq. MILNE LAW GROUP, P.A. 301 East Pine Street — Suite 525 Orlando, FL 32801 pkapsales@milnclawgroup.com mefta@milnelawgroup.com eservice(@milnelawgroup.com Counsel for Defendant, Weathermaster Building Products, Inc. Robin H. Leavengood, Esq. Lannie D. Hough, Jr., Esq. CARLTON FIELDS, P.A. 4221 W. Boy Scout Boulevard Tampa, FL 33607-5780 rleavengood@carltonfields.com brosa@carltonfields.com lhough@carltonfields.cor nbonilla@carltonfields.com ywilliams@ecarltonfields.com Counsel for Defendant, Royal Oak Homes, LLC 15 Paul Sidney Elliott, Esq. P. O. Box 274204 Tampa, FL 33688-4204 pse@psejd.con Counsel for Defendant, Hugh MacDonald Construction, Inc. (HMC) Denise M. Anderson, Esq. Kate F. Gaset, Esq. BUTLER WEIHMULLER KATZ CRAIG LLP 400 North Ashley Drive — Suite 2300 Tampa, FL 33602 danderson@butler. legal kgaset@pbutler.legal ve acobs@butler legal mmilligan@ butler. legal Counsel for Defendant, Don King’s Concrete, Inc. Jayne Ann Pittman, Esq. CONROY SIMBERG Two South Orange Avenue — Suite 300 Orlando, FL 32801 eserviccorl@conrovsimberg.com jpittman@conroysimberg.com mmaitland@conroysimberg.com Counsel for Defendant, Advanced Wrapping and Concrete Solutions Of Central Florida, Inc. 16