Preview
Filing # 127262632 E-Filed 05/21/2021 09:15:08 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., 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
liabilitycompany; 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,
Milne Law Group, P.A.
301 East Pine Street » Suite 525 ° Orlando, FL 32801
(321) 558-7700 * (407) 641-2111-Fax * www.milnelawgroup.com
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
corporation; CASEY HAWKINS, GLASS, INC., a
Florida corporation; DEAN NESBIT, LLC, a Florida
limited liability company; HELBERG
ENTERPRISES, LLC, a Florida limited liability
company; HOBBIT WINDOWS, LLC, a Florida
limited liability company; T&M CONSTRUCTION
OF SANFORD, INC., a Florida corporation; WELL
DONE WINDOWS, INC., a Florida corporation; and
WELL HUNG WINDOWS & DOORS, LLC, a
Florida limited liability company;
Third-Party Defendants.
Milne Law Group, P.A.
301 East Pine Street * Suite 525 * Orlando, FL 32801
(321) 558-7700 * (407) 641-2111-Fax ¢ www.milnelawgroup.com
2
WEATHERMASTER BUILDING PRODUCTS, INC.’S
ANSWER AND AFFIRMATIVE DEFENSES TO
ROYAL OAK HOMES, LLC’S AMENDED CROSSCLAIM
COMES NOW, the Defendant/Crossclaim Defendant, WEATHERMASTER BUILDING
PRODUCTS, INC. ("WEATHERMASTER?”), by and through its undersigned counsel, hereby
serves its Answer and Affirmative Defenses to Defendant/Crossclaim Plaintiff, ROYAL OAK
HOMES, LLC’s (“ROYAL OAK”) Amended Crossclaim and states as follows:
Jurisdiction And Venue
WEATHERMASTER admits to this allegation for jurisdictional purposes only.
WEATHERMASTER admits to this allegation for jurisdictional purposes only.
WEATHERMASTER is without knowledge, and therefore denies this allegation.
WEATHERMASTER is without knowledge, and therefore denies this allegation.
Parties
WEATHERMASTER is without knowledge, and therefore denies this allegation.
WEATHERMASTER is without knowledge, and therefore denies this allegation.
WEATHERMASTER is without knowledge, and therefore denies this allegation.
WEATHERMASTER is without knowledge, and therefore denies this allegation.
WEATHERMASTER is without knowledge, and therefore denies this allegation.
10. WEATHERMASTER is without knowledge, and therefore denies this allegation.
11 WEATHERMASTER admits to this allegation.
12 WEATHERMASTER is without knowledge, and therefore denies this allegation.
13 WEATHERMASTER is without knowledge, and therefore denies this allegation.
14 WEATHERMASTER is without knowledge, and therefore denies this allegation.
Milne Law Group, P.A.
301 East Pine Street * Suite 525 * Orlando, FL 32801
(321) 558-7700 * (407) 641-2111-Fax ¢ www.milnelawgroup.com
3
General Allegation:
15. WEATHERMASTER denies this allegation as it pertains to WEATHERMASTER.
WEATHERMASTER is without knowledge, and therefore denies the remaining allegations
contained in Paragraph No. 15.
16. WEATHERMASTER is without knowledge, and therefore denies this allegation.
17. WEATHERMASTER is without knowledge, and therefore denies this allegation.
18. WEATHERMASTER denies this allegation.
Counts One Through Nineteen
(Counts Against Other Parties)
19.-163. The allegations contained in Counts One through Nineteen (Paragraph Nos. 19-
163) do not apply to WEATHERMASTER; therefore, a response is not required.
Count Twenty — Breach Of Contract
(against WEATHERMASTER)
164. WEATHERMASTER realleges and reaffirms its answers to Paragraphs | through
18 as set forth above.
165 WEATHERMASTER admits to this allegation.
166. The WEATHERMASTER contract speaks for itself.
167 WEATHERMASTER admits to this allegation.
168 WEATHERMASTER denies this allegation.
169 WEATHERMASTER denies this allegation.
170. WEATHERMASTER admits to this allegation.
171 WEATHERMASTER denies this allegation.
172 WEATHERMASTER is without knowledge, and therefore denies this allegation.
Milne Law Group, P.A.
301 East Pine Street * Suite 525 * Orlando, FL 32801
(321) 558-7700 * (407) 641-2111-Fax ¢ www.milnelawgroup.com
4
173. WEATHERMASTER denies this allegation.
174. WEATHERMASTER denies this allegation.
Count Twenty-One — Negligenc
(against WEATHERMASTER)
175. WEATHERMASTER realleges and reaffirms its answers to Paragraphs 1 through
18 as set forth above.
176. WEATHERMASTER is without knowledge, and therefore denies this allegation.
177. WEATHERMASTER denies this allegation.
178. WEATHERMASTER denies this allegation.
Count Twenty-Two — Statutory Cause Of Action Pursuant To § 553.84, Fla. Stat.
(against WEATHERMASTER)
179. WEATHERMASTER realleges and reaffirms its answers to Paragraphs | through
18 as set forth above.
180. WEATHERMASTER is without knowledge, and therefore denies this allegation.
181 WEATHERMASTER is without knowledge, and therefore denies this allegation.
182 WEATHERMASTER admits to this allegation.
183 WEATHERMASTER denies this allegation.
184. WEATHERMASTER denies this allegation.
185, WEATHERMASTER denies this allegation.
186. WEATHERMASTER denies this allegation.
Counts Twenty-Three Through Thirty-On
(Counts Against Other Parties)
Milne Law Group, P.A.
301 East Pine Street * Suite 525 * Orlando, FL 32801
(321) 558-7700 * (407) 641-2111-Fax ¢ www.milnelawgroup.com
5
187.-260. The allegations contained in Counts Twenty-Three through Thirty-One
(Paragraph Nos. 187-260) do not apply to WEATHERMASTER; therefore, a response is not
required.
AFFIRMATIVE DEFENSES
1 ROYAL OAK has failed to state a cause of action against WEATHERMASTER
for which relief can be granted.
2 WEATHERMASTER asserts that ROYAL OAK’s claims are barred to the extent
its alleged damages, if any, were caused by its own acts, omissions, defaults, breaches, and/or
contributory or comparative negligence.
3 WEATHERMASTER asserts that ROYAL OAK’s claims against
WEATHERMASTER are barred to the extent that its alleged damages if any, were caused by the
acts, omissions, defaults, breaches and/or contributory or comparative negligence of third parties
including, but not limited to, the Co-Defendants in this action or any Third-Party Defendants, and
for whose acts, omissions or defaults WEATHERMASTER is neither responsible or liable.
4 WEATHERMASTER asserts ROYAL OAK’s alleged damages were caused, in
whole or in part, by the contributory negligence, fault, errors, acts, and/or omission of ROYAL
OAK, or others, including, but not limited to, the Plaintiff, the individual unit owners, as well as
the developer, the architect, the general contractor, subcontractors, and other co-Defendants in this
litigation, together with other parties and/or non-parties engaged by or under their control.
WEATHERMASTER has no control over such things as the general contractor’s means and
methods, use or misuse of the site during and after construction that may have led to the alleged
defects, and substandard maintenance by the Plaintiff. To the extent that such negligence, fault,
Milne Law Group, P.A.
301 East Pine Street * Suite 525 * Orlando, FL 32801
(321) 558-7700 * (407) 641-2111-Fax ¢ www.milnelawgroup.com
6
errors, acts, and/or omissions are the cause of ROYAL OAK’s damages, ROYAL OAK’s causes
of action against WEATHERMASTER are reduced or barred thereby.
5 WEATHERMASTER asserts that any alleged damages suffered by ROYAL OAK
were caused in whole or in part by the negligence or fault of unknown or known third parties.
WEATHERMASTER has no control over such things as construction means and methods, actions
and inactions of contractors and subcontractors during and after construction, and the use or misuse
of the subject properties in negligent ways by unknown third parties that may have caused the
alleged deficiencies listed in Plaintiff's Complaint and/or ROYAL OAK’s Crossclaim. As a result,
WEATHERMASTER should only be liable, if at all, for its proportionate share of fault pursuant
to Fla. Stat. § 768.81 and Fabre v. State Farm Mutual Auto Co., 623 So.2d 1182 (Fla. 1993). The
third parties that wholly or partially caused the damages cannot be specifically identified at this
time because discovery is ongoing. For the purposes of this Affirmative Defense,
WEATHERMASTER adopts the allegations in Plaintiff's Complaint and ROYAL OAK’s
Crossclaim as if fully set forth in this Affirmative Defense and to the extent the evidence supports
ROYAL OAK’s claims against one or more of these co-Defendants, WEATHERMASTER
reserves the right to request that the Court include such Defendant(s) on the verdict form,
regardless of whether they remain a party to this cause. Further, WEATHERMASTER reserves
the right to identify other third-party tortfeasors.
6. ROYAL OAK is comparatively negligent by, including but not limited to, failing
to perform its duties on the project, failing to require its subcontractors to fully comply with the
requirements of their contract, in failing to use reasonable care and timely detecting and correcting
any alleged deficiencies, which proximately caused all or a portion of the damages.
Milne Law Group, P.A.
301 East Pine Street * Suite 525 * Orlando, FL 32801
(321) 558-7700 * (407) 641-2111-Fax ¢ www.milnelawgroup.com
7
7
WEATHERMASTER states to the extent Plaintiff failed to comply with Chapter
558, Florida Statutes, Plaintiff may not pursue its claims at trial pursuant to Fla. Stat. §
558.004(11).
8 All or a portion of the alleged defects that are subject to this lawsuit are open and
obvious, and Plaintiff and/or ROYAL OAK knew or should have known of the defects for more
than four years prior to the filing of this suit and thus, all or a portion of the claims are barred by
Section 95.11(3)(c), Florida Statutes.
9. ROYAL OAK failed to mitigate its damages, by, including but not limited to,
failing to perform their duties on the Project, failing to require their subcontractors to fully comply
with the requirements of their contacts, failing to properly supervise their subcontractors or its own
employees and inspect the premises which is the subject of this litigation, and failed to use
reasonable care and timely detecting and correcting alleged deficiencies which proximately caused
all or a portion of the damages.
10. The Plaintiff and/or individual unit owners failed to properly maintain the subject
properties and/or the alleged damages are induced by their failure to properly perform routine
maintenance on the subject properties and the claims against WEATHERMASTER are barred.
11. WEATHERMASTER is only liable for its proportional share of alleged damages
arising out of its alleged negligence, if any, and relies on Section 768.81, Florida Statutes, and the
principal of the law set forth in Fabre v. Marin, 623 So.2d 1182 (Fla. 1993). Therefore, all claims
against WEATHERMASTER are barred or subject to apportionment.
12. ROYAL OAK’s claims are barred to the extent that damages now claimed by it are
speculative, excessive, remote, contingent, prospective, uncertain, improbable, not reasonably
Milne Law Group, P.A.
301 East Pine Street * Suite 525 * Orlando, FL 32801
(321) 558-7700 * (407) 641-2111-Fax ¢ www.milnelawgroup.com
8
ascertainable, were unforeseeable, were not within the contemplation of the parties to their
respective contracts at the time they were entered or otherwise, and do not logically, naturally,
probably, or proximately flow from any alleged breach thereof.
13. ROYAL OAK’s claims are precluded or limited by Florida’s Economic Loss Rule.
14. To the extent that WEATHERMASTER’s work is found to have been previously
inspected, approved, accepted (expressly or impliedly) and paid for by ROYAL OAK, the
architect, the owner, and/or the agents, employees, representatives, assignees, subrogors, privies,
and/or predecessors/successor in interest thereof, ROYAL OAK’s claims are barred by the
doctrine espoused under Slavin v. Kay, 108 So.2d 462 (Fla. 1959) and is progeny, and by the
related principles of release, estoppel, waiver and merger.
15. WEATHERMASTER affirmatively asserts that to the extent it is found to have
faithfully followed and complied with the express and applicable provisions of the contract
documents, ROYAL OAK’s claims are barred pursuant to the doctrine espoused under United
States v. Spearin, 248 U.S. 132 (1918) and Pearce & Pearce v. Kroh Bros. Dev. Co., 474 So. 2d
369 (Fla. Ist DCA 1985).
16. The designer of the buildings at the subject property was charged with the non-
delegable duty of ensuring that the design conformed with and met all applicable laws, regulations
and building codes, as required by Atlantic National Bank of Jacksonville v. Modular Age, Inc.,
363 So.2d 1152 (Fla. 1st DCA 1978). WEATHERMASTER followed the plans and specifications
in performing its work at the buildings as directed, and to the extent ROYAL OAK now maintains
that the design or specified materials do not conform with all applicable laws, regulations, or
building codes, WEATHERMASTER is not legally responsible for same.
Milne Law Group, P.A.
301 East Pine Street * Suite 525 * Orlando, FL 32801
(321) 558-7700 * (407) 641-2111-Fax ¢ www.milnelawgroup.com
9
17. ROYAL OAK’s claims are barred by the doctrines of waiver and estoppel, express
or implied from conduct. Without limitation, ROYAL OAK failed to exercise due diligence and
reasonable care, in maintaining or identifying the alleged deficiencies. ROYAL OAK did not
provide adequate notice of these waived conditions, and thus is estopped and barred from asserting
claims for defects that were open, obvious, patent or defects it knew or should have known existed
with the exercise of due diligence. Further, the individual unit owners were given the opportunity
prior to closing to inspect the subject properties and to list any items they found that were defective
in design, workmanship, or materials that such defect items, if any, could be repaired or replace in
a timely manner. To the extent the individual unit owners failed to list defects or failed to avail
themselves of these pre-purchase inspections, the individual unit owners agreed to be deemed to
have accepted the subject properties in their existing condition, “As Is/Where Is,” accepted the
work as having been designed and constructed in a good and workmanlike manner, and waived all
rights with respect thereto, which extinguished ROYAL OAK’s claims against
WEATHERMASTER.
18. To the extent that ROYAL OAK has or does settle with, obtain judgment against,
or otherwise receives payment from any party or non-party, including but not limited to insureds,
or otherwise receives payment from any collateral sources for the same damages sought herein, its
damages are subject to setoff therefore to the extent thereof.
19. WEATHERMASTER affirmatively alleges that all of its work was repeatedly
inspected and monitored as it was performed by ROYAL OAK or their lawful representatives and
all objections were noted or fully corrected or adjusted at the time.
Milne Law Group, P.A.
301 East Pine Street * Suite 525 * Orlando, FL 32801
(321) 558-7700 * (407) 641-2111-Fax ¢ www.milnelawgroup.com
10
20. WEATHERMASTER affirmatively asserts ROY AL OAK is estopped to bring this
action because it was fully aware of the work performed by WEATHERMASTER, all of such
work having been regularly and frequently monitored, inspected, reviewed, observed, and
otherwise evaluated as such work was performed and therefore, the owner took full use and
possession of the Project and thereby accepted the work as done.
21. WEATHERMASTER affirmatively asserts that ROYAL OAK and Plaintiff failed
to mitigate their damages.
22. WEATHERMASTER affirmatively asserts ROYAL OAK’s claims are barred by
the doctrine of payment, accord, satisfaction, waiver, release and/or compromise and settlement.
23. WEATHERMASTER affirmatively asserts that it is not liable as the subject
properties were misused, abused, neglected, or not maintained by Plaintiff and/or individual unit
owners.
24. WEATHERMASTER affirmatively asserts that the parties are not within the
control of this Defendant. Therefore, WEATHERMASTER should not be liable for such damages
caused by others. Those parties include the Association, the individual unit owners, ROYAL OAK,
architect, engineer, other sub-contractors, and other Defendants/Third-Party Defendants in this
action.
25. WEATHERMASTER affirmatively asserts that any damages allegedly suffered
were due to circumstances or conditions or events beyond the control of WEATHERMASTER
and were not reasonably foreseeable by a prudent person.
Milne Law Group, P.A.
301 East Pine Street * Suite 525 * Orlando, FL 32801
(321) 558-7700 * (407) 641-2111-Fax ¢ www.milnelawgroup.com
11
26. WEATHERMASTER affirmatively asserts that ROYAL OAK’s damages, if any,
were caused by ROYAL OAK’s failure to timely address the poor workmanship, design of others,
and therefore, ROYAL OAK cannot recover against WEATHERMASTER.
27. WEATHERMASTER incorporates and asserts all of the affirmative defenses
alleged by the other Defendants and Third-Party Defendants.
28. WEATHERMASTER states to the extent ROYAL OAK has spoiled, altered, or
adulterated evidence otherwise available to WEATHERMASTER without maintaining said
evidence throughout the course of the Project, ROYAL OAK’s claims should be dismissed or
limited.
29. WEATHERMASTER states to the extent other parties or persons (including the
Plaintiff, ROYAL OAK, individual unit owners, or any of the other Defendants/Third-Party
Defendants) subsequently modified or altered the work of WEATHERMASTER,
WEATHERMASTER cannot be held liable.
30. WEATHERMASTER states that ROYAL OAK’s claims are barred or dismissed
by the Economic Waste Doctrine as set forth in Grossman Holdings, Ltd. v. Hourihan, 414 So.2d
1037 (Fla. 1982).
31. The damages sought by ROYAL OAK against WEATHERMASTER are not
recoverable to the extent that such damages are betterment and/or associated with first costs, which
should have been incurred by Plaintiff as a result of the construction of the Project. For example,
if the alleged deficiencies resulted from a misuse not originally contracted for, contemplated, or
intended by the owners, users, developers, and designers, and the solution is for a different item
than what was originally contracted, ROYAL OAK cannot claim these costs as they relate to first
Milne Law Group, P.A.
301 East Pine Street * Suite 525 * Orlando, FL 32801
(321) 558-7700 * (407) 641-2111-Fax ¢ www.milnelawgroup.com
12
costs and betterment (at this early stage in litigation prior to any discovery we offer this one
example, not to be limited by it). See Sch. Bd. of Broward Cty. v. Pierce Goodwin Alexander &
Linville, 137 So.3d 1059, 1062 (Fla. 4"" DCA 2014) (first costs and betterment were asserted as
Affirmative Defenses); see also Lochrane Eng’g, Inc. v. Willingham Realgrowth Inv, Fund, Ltd.,
552 So.2d 228, 231 (Fla. 5" DCA 1989) (exploring the concept of first costs as they relate to the
design and repair costs for a septic system); Mall v. Pawelski, 626 So.2d 291, 292 (Fla. 4" DCA
1993) (the measure of damages in replacing an old roof at the end of its life expectancy is not the
cost of the new roof, but rather the replacement cost of the new roof, prorated to account for the
increased life expectancy of the new roof).
32. WEATHERMASTER alleges that the damages complained of in ROYAL OAK’s
Crossclaim are speculative, excessive, remote, contingent, prospective, uncertain, improbable, not
reasonably ascertainable, unforeseeable, and not within the contemplation of the parties to their
respective contracts at the time they were entered or otherwise. Such damages must provide some
reasonable basis in the evidence for determining the amount of damages with such certainty as
would satisfy the mind of a prudent and impartial person. See W.W. Gay Mechanical Contractor
v. Wharfside Two, Ltd., 545 So. 2d 1348 (Fla. 1989); Twyman v. Roell, 166 So. 215 (Fla. 1936);
Resolution Trust Corp. v. Stroock & Lavan, 853 F. Supp. 1422 (S.D. Fla. 1994); John Hancock
Mut. Life Ins. Co. v. Mark-A, Inc., 324 So. 2d 674 (Fla. 2d DCA 1955).
33. As the general contractor for the project, ROYAL OAK had a pecuniary interest in
the outcome of the construction and the sales of the individual units at the Project. ROYAL OAK
supplied the plans and specifications to guide the subcontractors in the construction of the Project.
The subcontractors relied upon the information provided by ROYAL OAK. Moreover, ROYAL
Milne Law Group, P.A.
301 East Pine Street * Suite 525 * Orlando, FL 32801
(321) 558-7700 * (407) 641-2111-Fax ¢ www.milnelawgroup.com
13
OAK had personnel at the Project to guide the subcontractors in the means and methods to
construct the Project. ROYAL OAK failed to exercise reasonable care or competence as the
general contractor in communicating the information to the subcontractors. Consequently,
ROYAL OAK’s claims against the subcontractors in this action must be reduced or barred
accordingly.
34. WEATHERMASTER has at all times adhered to the applicable building codes,
plans, and specifications provided by the owner and its representatives, the general contractor,
architect, and/or engineers. To the extent that any defect or failure has arisen in the scope of the
work by, it is caused in whole or in part by defects caused by improper design or work on the part
of the aforementioned entities or individuals, and is not the fault of WEATHERMASTER.
Therefore, ROYAL OAK is barred from recovery against WEATHERMASTER.
35. Any claims by Plaintiff and/or ROYAL OAK for latent defects are time barred in
accordance with the Statute of Repose and Statute of Limitations pursuant to Fla. Stat. §
95.11(3)(c).
36. ROYAL OAK cannot recover for contractual indemnity because the
indemnification provision contained in WEATHERMASTER contract does not include a
monetary limitation as required by Fla. Stat. § 725.06(1)
37. WEATHERMASTER affirmatively asserts that any alleged defects in
WEATHERMASTER’s scope of work are wholly the result of normal wear and tear and/or
damages due to weather conditions or other causes or circumstances.
38. ROYAL OAK’s claims for alleged damages allegedly due from construction
defects are barred to the extent they are proven to actually be caused by design defects.
Milne Law Group, P.A.
301 East Pine Street * Suite 525 * Orlando, FL 32801
(321) 558-7700 * (407) 641-2111-Fax ¢ www.milnelawgroup.com
14
39. Section 553.84 of the Florida Statutes does not apply to WEATHERMASTER
because the required building permits for the subject homes were obtained and a local government
or public agency official with authority to enforce the Florida Building Code approved the plans.
40. Section 553.84 of the Florida Statutes does not apply to WEATHERMASTER
because the subject properties passed all required inspections under the Florida Building Code.
Al. Section 553.84 of the Florida Statutes does not apply to WEATHERMASTER
because there is no personal injury or damage to property other than the subject homes themselves
which is the subject of the permits, plans, and inspections.
42. Section 553.84 of the Florida Statutes does not apply to WEATHERMASTER
because WEATHERMASTER did not know and should not have known that a purported
violation(s) of the Florida Building Code existed.
Respectfully submitted,
4s/ Peter J. Kapsales
PETER J. KAPSALES, ESQ.
Florida Bar No.: 91176
SHAWN M. TRAUTMAN, ESQ.
Florida Bar No.: 124269
MILNE LAW GROUP, P.A.
301 East Pine Street, Suite 525
Orlando, Florida 32801
Tel: (321) 558-7700
Fax: (407) 641-2111
Email: pkapsales@milnelawgroup.com
strautman@milnelawgroup.com
eservice@milnelawgroup.com
Attorneys for Defendant/Crossclaim
Defendant, Weathermaster Building
Products, Inc.
Milne Law Group, P.A.
301 East Pine Street * Suite 525 * Orlando, FL 32801
(321) 558-7700 * (407) 641-2111-Fax ¢ www.milnelawgroup.com
15
CERTIFICATE
OF SERVICE
WE HEREBY CERTIFY that on this 21" day of May 2021, a true and correct copy of
the foregoing was filed with the Clerk of the Circuit Court using the Florida Courts’ e-Filing Portal,
which will deliver electronic copies of said filing pursuant to Fla. R. Jud. Admin. 2.516 to the
designated email addresses of all counsel of record.
4s/ Peter J. Kapsales
PETER J. KAPSALES, ESQ.
Milne Law Group, P.A.
301 East Pine Street * Suite 525 * Orlando, FL 32801
(321) 558-7700 * (407) 641-2111-Fax ¢ www.milnelawgroup.com
16
Preview
Filing # 127262632 E-Filed 05/21/2021 09:15:08 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., 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 liabilitycompany; 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, Milne Law Group, P.A. 301 East Pine Street » Suite 525 ° Orlando, FL 32801 (321) 558-7700 * (407) 641-2111-Fax * www.milnelawgroup.com 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 corporation; CASEY HAWKINS, GLASS, INC., a Florida corporation; DEAN NESBIT, LLC, a Florida limited liability company; HELBERG ENTERPRISES, LLC, a Florida limited liability company; HOBBIT WINDOWS, LLC, a Florida limited liability company; T&M CONSTRUCTION OF SANFORD, INC., a Florida corporation; WELL DONE WINDOWS, INC., a Florida corporation; and WELL HUNG WINDOWS & DOORS, LLC, a Florida limited liability company; Third-Party Defendants. Milne Law Group, P.A. 301 East Pine Street * Suite 525 * Orlando, FL 32801 (321) 558-7700 * (407) 641-2111-Fax ¢ www.milnelawgroup.com 2 WEATHERMASTER BUILDING PRODUCTS, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO ROYAL OAK HOMES, LLC’S AMENDED CROSSCLAIM COMES NOW, the Defendant/Crossclaim Defendant, WEATHERMASTER BUILDING PRODUCTS, INC. ("WEATHERMASTER?”), by and through its undersigned counsel, hereby serves its Answer and Affirmative Defenses to Defendant/Crossclaim Plaintiff, ROYAL OAK HOMES, LLC’s (“ROYAL OAK”) Amended Crossclaim and states as follows: Jurisdiction And Venue WEATHERMASTER admits to this allegation for jurisdictional purposes only. WEATHERMASTER admits to this allegation for jurisdictional purposes only. WEATHERMASTER is without knowledge, and therefore denies this allegation. WEATHERMASTER is without knowledge, and therefore denies this allegation. Parties WEATHERMASTER is without knowledge, and therefore denies this allegation. WEATHERMASTER is without knowledge, and therefore denies this allegation. WEATHERMASTER is without knowledge, and therefore denies this allegation. WEATHERMASTER is without knowledge, and therefore denies this allegation. WEATHERMASTER is without knowledge, and therefore denies this allegation. 10. WEATHERMASTER is without knowledge, and therefore denies this allegation. 11 WEATHERMASTER admits to this allegation. 12 WEATHERMASTER is without knowledge, and therefore denies this allegation. 13 WEATHERMASTER is without knowledge, and therefore denies this allegation. 14 WEATHERMASTER is without knowledge, and therefore denies this allegation. Milne Law Group, P.A. 301 East Pine Street * Suite 525 * Orlando, FL 32801 (321) 558-7700 * (407) 641-2111-Fax ¢ www.milnelawgroup.com 3 General Allegation: 15. WEATHERMASTER denies this allegation as it pertains to WEATHERMASTER. WEATHERMASTER is without knowledge, and therefore denies the remaining allegations contained in Paragraph No. 15. 16. WEATHERMASTER is without knowledge, and therefore denies this allegation. 17. WEATHERMASTER is without knowledge, and therefore denies this allegation. 18. WEATHERMASTER denies this allegation. Counts One Through Nineteen (Counts Against Other Parties) 19.-163. The allegations contained in Counts One through Nineteen (Paragraph Nos. 19- 163) do not apply to WEATHERMASTER; therefore, a response is not required. Count Twenty — Breach Of Contract (against WEATHERMASTER) 164. WEATHERMASTER realleges and reaffirms its answers to Paragraphs | through 18 as set forth above. 165 WEATHERMASTER admits to this allegation. 166. The WEATHERMASTER contract speaks for itself. 167 WEATHERMASTER admits to this allegation. 168 WEATHERMASTER denies this allegation. 169 WEATHERMASTER denies this allegation. 170. WEATHERMASTER admits to this allegation. 171 WEATHERMASTER denies this allegation. 172 WEATHERMASTER is without knowledge, and therefore denies this allegation. Milne Law Group, P.A. 301 East Pine Street * Suite 525 * Orlando, FL 32801 (321) 558-7700 * (407) 641-2111-Fax ¢ www.milnelawgroup.com 4 173. WEATHERMASTER denies this allegation. 174. WEATHERMASTER denies this allegation. Count Twenty-One — Negligenc (against WEATHERMASTER) 175. WEATHERMASTER realleges and reaffirms its answers to Paragraphs 1 through 18 as set forth above. 176. WEATHERMASTER is without knowledge, and therefore denies this allegation. 177. WEATHERMASTER denies this allegation. 178. WEATHERMASTER denies this allegation. Count Twenty-Two — Statutory Cause Of Action Pursuant To § 553.84, Fla. Stat. (against WEATHERMASTER) 179. WEATHERMASTER realleges and reaffirms its answers to Paragraphs | through 18 as set forth above. 180. WEATHERMASTER is without knowledge, and therefore denies this allegation. 181 WEATHERMASTER is without knowledge, and therefore denies this allegation. 182 WEATHERMASTER admits to this allegation. 183 WEATHERMASTER denies this allegation. 184. WEATHERMASTER denies this allegation. 185, WEATHERMASTER denies this allegation. 186. WEATHERMASTER denies this allegation. Counts Twenty-Three Through Thirty-On (Counts Against Other Parties) Milne Law Group, P.A. 301 East Pine Street * Suite 525 * Orlando, FL 32801 (321) 558-7700 * (407) 641-2111-Fax ¢ www.milnelawgroup.com 5 187.-260. The allegations contained in Counts Twenty-Three through Thirty-One (Paragraph Nos. 187-260) do not apply to WEATHERMASTER; therefore, a response is not required. AFFIRMATIVE DEFENSES 1 ROYAL OAK has failed to state a cause of action against WEATHERMASTER for which relief can be granted. 2 WEATHERMASTER asserts that ROYAL OAK’s claims are barred to the extent its alleged damages, if any, were caused by its own acts, omissions, defaults, breaches, and/or contributory or comparative negligence. 3 WEATHERMASTER asserts that ROYAL OAK’s claims against WEATHERMASTER are barred to the extent that its alleged damages if any, were caused by the acts, omissions, defaults, breaches and/or contributory or comparative negligence of third parties including, but not limited to, the Co-Defendants in this action or any Third-Party Defendants, and for whose acts, omissions or defaults WEATHERMASTER is neither responsible or liable. 4 WEATHERMASTER asserts ROYAL OAK’s alleged damages were caused, in whole or in part, by the contributory negligence, fault, errors, acts, and/or omission of ROYAL OAK, or others, including, but not limited to, the Plaintiff, the individual unit owners, as well as the developer, the architect, the general contractor, subcontractors, and other co-Defendants in this litigation, together with other parties and/or non-parties engaged by or under their control. WEATHERMASTER has no control over such things as the general contractor’s means and methods, use or misuse of the site during and after construction that may have led to the alleged defects, and substandard maintenance by the Plaintiff. To the extent that such negligence, fault, Milne Law Group, P.A. 301 East Pine Street * Suite 525 * Orlando, FL 32801 (321) 558-7700 * (407) 641-2111-Fax ¢ www.milnelawgroup.com 6 errors, acts, and/or omissions are the cause of ROYAL OAK’s damages, ROYAL OAK’s causes of action against WEATHERMASTER are reduced or barred thereby. 5 WEATHERMASTER asserts that any alleged damages suffered by ROYAL OAK were caused in whole or in part by the negligence or fault of unknown or known third parties. WEATHERMASTER has no control over such things as construction means and methods, actions and inactions of contractors and subcontractors during and after construction, and the use or misuse of the subject properties in negligent ways by unknown third parties that may have caused the alleged deficiencies listed in Plaintiff's Complaint and/or ROYAL OAK’s Crossclaim. As a result, WEATHERMASTER should only be liable, if at all, for its proportionate share of fault pursuant to Fla. Stat. § 768.81 and Fabre v. State Farm Mutual Auto Co., 623 So.2d 1182 (Fla. 1993). The third parties that wholly or partially caused the damages cannot be specifically identified at this time because discovery is ongoing. For the purposes of this Affirmative Defense, WEATHERMASTER adopts the allegations in Plaintiff's Complaint and ROYAL OAK’s Crossclaim as if fully set forth in this Affirmative Defense and to the extent the evidence supports ROYAL OAK’s claims against one or more of these co-Defendants, WEATHERMASTER reserves the right to request that the Court include such Defendant(s) on the verdict form, regardless of whether they remain a party to this cause. Further, WEATHERMASTER reserves the right to identify other third-party tortfeasors. 6. ROYAL OAK is comparatively negligent by, including but not limited to, failing to perform its duties on the project, failing to require its subcontractors to fully comply with the requirements of their contract, in failing to use reasonable care and timely detecting and correcting any alleged deficiencies, which proximately caused all or a portion of the damages. Milne Law Group, P.A. 301 East Pine Street * Suite 525 * Orlando, FL 32801 (321) 558-7700 * (407) 641-2111-Fax ¢ www.milnelawgroup.com 7 7 WEATHERMASTER states to the extent Plaintiff failed to comply with Chapter 558, Florida Statutes, Plaintiff may not pursue its claims at trial pursuant to Fla. Stat. § 558.004(11). 8 All or a portion of the alleged defects that are subject to this lawsuit are open and obvious, and Plaintiff and/or ROYAL OAK knew or should have known of the defects for more than four years prior to the filing of this suit and thus, all or a portion of the claims are barred by Section 95.11(3)(c), Florida Statutes. 9. ROYAL OAK failed to mitigate its damages, by, including but not limited to, failing to perform their duties on the Project, failing to require their subcontractors to fully comply with the requirements of their contacts, failing to properly supervise their subcontractors or its own employees and inspect the premises which is the subject of this litigation, and failed to use reasonable care and timely detecting and correcting alleged deficiencies which proximately caused all or a portion of the damages. 10. The Plaintiff and/or individual unit owners failed to properly maintain the subject properties and/or the alleged damages are induced by their failure to properly perform routine maintenance on the subject properties and the claims against WEATHERMASTER are barred. 11. WEATHERMASTER is only liable for its proportional share of alleged damages arising out of its alleged negligence, if any, and relies on Section 768.81, Florida Statutes, and the principal of the law set forth in Fabre v. Marin, 623 So.2d 1182 (Fla. 1993). Therefore, all claims against WEATHERMASTER are barred or subject to apportionment. 12. ROYAL OAK’s claims are barred to the extent that damages now claimed by it are speculative, excessive, remote, contingent, prospective, uncertain, improbable, not reasonably Milne Law Group, P.A. 301 East Pine Street * Suite 525 * Orlando, FL 32801 (321) 558-7700 * (407) 641-2111-Fax ¢ www.milnelawgroup.com 8 ascertainable, were unforeseeable, were not within the contemplation of the parties to their respective contracts at the time they were entered or otherwise, and do not logically, naturally, probably, or proximately flow from any alleged breach thereof. 13. ROYAL OAK’s claims are precluded or limited by Florida’s Economic Loss Rule. 14. To the extent that WEATHERMASTER’s work is found to have been previously inspected, approved, accepted (expressly or impliedly) and paid for by ROYAL OAK, the architect, the owner, and/or the agents, employees, representatives, assignees, subrogors, privies, and/or predecessors/successor in interest thereof, ROYAL OAK’s claims are barred by the doctrine espoused under Slavin v. Kay, 108 So.2d 462 (Fla. 1959) and is progeny, and by the related principles of release, estoppel, waiver and merger. 15. WEATHERMASTER affirmatively asserts that to the extent it is found to have faithfully followed and complied with the express and applicable provisions of the contract documents, ROYAL OAK’s claims are barred pursuant to the doctrine espoused under United States v. Spearin, 248 U.S. 132 (1918) and Pearce & Pearce v. Kroh Bros. Dev. Co., 474 So. 2d 369 (Fla. Ist DCA 1985). 16. The designer of the buildings at the subject property was charged with the non- delegable duty of ensuring that the design conformed with and met all applicable laws, regulations and building codes, as required by Atlantic National Bank of Jacksonville v. Modular Age, Inc., 363 So.2d 1152 (Fla. 1st DCA 1978). WEATHERMASTER followed the plans and specifications in performing its work at the buildings as directed, and to the extent ROYAL OAK now maintains that the design or specified materials do not conform with all applicable laws, regulations, or building codes, WEATHERMASTER is not legally responsible for same. Milne Law Group, P.A. 301 East Pine Street * Suite 525 * Orlando, FL 32801 (321) 558-7700 * (407) 641-2111-Fax ¢ www.milnelawgroup.com 9 17. ROYAL OAK’s claims are barred by the doctrines of waiver and estoppel, express or implied from conduct. Without limitation, ROYAL OAK failed to exercise due diligence and reasonable care, in maintaining or identifying the alleged deficiencies. ROYAL OAK did not provide adequate notice of these waived conditions, and thus is estopped and barred from asserting claims for defects that were open, obvious, patent or defects it knew or should have known existed with the exercise of due diligence. Further, the individual unit owners were given the opportunity prior to closing to inspect the subject properties and to list any items they found that were defective in design, workmanship, or materials that such defect items, if any, could be repaired or replace in a timely manner. To the extent the individual unit owners failed to list defects or failed to avail themselves of these pre-purchase inspections, the individual unit owners agreed to be deemed to have accepted the subject properties in their existing condition, “As Is/Where Is,” accepted the work as having been designed and constructed in a good and workmanlike manner, and waived all rights with respect thereto, which extinguished ROYAL OAK’s claims against WEATHERMASTER. 18. To the extent that ROYAL OAK has or does settle with, obtain judgment against, or otherwise receives payment from any party or non-party, including but not limited to insureds, or otherwise receives payment from any collateral sources for the same damages sought herein, its damages are subject to setoff therefore to the extent thereof. 19. WEATHERMASTER affirmatively alleges that all of its work was repeatedly inspected and monitored as it was performed by ROYAL OAK or their lawful representatives and all objections were noted or fully corrected or adjusted at the time. Milne Law Group, P.A. 301 East Pine Street * Suite 525 * Orlando, FL 32801 (321) 558-7700 * (407) 641-2111-Fax ¢ www.milnelawgroup.com 10 20. WEATHERMASTER affirmatively asserts ROY AL OAK is estopped to bring this action because it was fully aware of the work performed by WEATHERMASTER, all of such work having been regularly and frequently monitored, inspected, reviewed, observed, and otherwise evaluated as such work was performed and therefore, the owner took full use and possession of the Project and thereby accepted the work as done. 21. WEATHERMASTER affirmatively asserts that ROYAL OAK and Plaintiff failed to mitigate their damages. 22. WEATHERMASTER affirmatively asserts ROYAL OAK’s claims are barred by the doctrine of payment, accord, satisfaction, waiver, release and/or compromise and settlement. 23. WEATHERMASTER affirmatively asserts that it is not liable as the subject properties were misused, abused, neglected, or not maintained by Plaintiff and/or individual unit owners. 24. WEATHERMASTER affirmatively asserts that the parties are not within the control of this Defendant. Therefore, WEATHERMASTER should not be liable for such damages caused by others. Those parties include the Association, the individual unit owners, ROYAL OAK, architect, engineer, other sub-contractors, and other Defendants/Third-Party Defendants in this action. 25. WEATHERMASTER affirmatively asserts that any damages allegedly suffered were due to circumstances or conditions or events beyond the control of WEATHERMASTER and were not reasonably foreseeable by a prudent person. Milne Law Group, P.A. 301 East Pine Street * Suite 525 * Orlando, FL 32801 (321) 558-7700 * (407) 641-2111-Fax ¢ www.milnelawgroup.com 11 26. WEATHERMASTER affirmatively asserts that ROYAL OAK’s damages, if any, were caused by ROYAL OAK’s failure to timely address the poor workmanship, design of others, and therefore, ROYAL OAK cannot recover against WEATHERMASTER. 27. WEATHERMASTER incorporates and asserts all of the affirmative defenses alleged by the other Defendants and Third-Party Defendants. 28. WEATHERMASTER states to the extent ROYAL OAK has spoiled, altered, or adulterated evidence otherwise available to WEATHERMASTER without maintaining said evidence throughout the course of the Project, ROYAL OAK’s claims should be dismissed or limited. 29. WEATHERMASTER states to the extent other parties or persons (including the Plaintiff, ROYAL OAK, individual unit owners, or any of the other Defendants/Third-Party Defendants) subsequently modified or altered the work of WEATHERMASTER, WEATHERMASTER cannot be held liable. 30. WEATHERMASTER states that ROYAL OAK’s claims are barred or dismissed by the Economic Waste Doctrine as set forth in Grossman Holdings, Ltd. v. Hourihan, 414 So.2d 1037 (Fla. 1982). 31. The damages sought by ROYAL OAK against WEATHERMASTER are not recoverable to the extent that such damages are betterment and/or associated with first costs, which should have been incurred by Plaintiff as a result of the construction of the Project. For example, if the alleged deficiencies resulted from a misuse not originally contracted for, contemplated, or intended by the owners, users, developers, and designers, and the solution is for a different item than what was originally contracted, ROYAL OAK cannot claim these costs as they relate to first Milne Law Group, P.A. 301 East Pine Street * Suite 525 * Orlando, FL 32801 (321) 558-7700 * (407) 641-2111-Fax ¢ www.milnelawgroup.com 12 costs and betterment (at this early stage in litigation prior to any discovery we offer this one example, not to be limited by it). See Sch. Bd. of Broward Cty. v. Pierce Goodwin Alexander & Linville, 137 So.3d 1059, 1062 (Fla. 4"" DCA 2014) (first costs and betterment were asserted as Affirmative Defenses); see also Lochrane Eng’g, Inc. v. Willingham Realgrowth Inv, Fund, Ltd., 552 So.2d 228, 231 (Fla. 5" DCA 1989) (exploring the concept of first costs as they relate to the design and repair costs for a septic system); Mall v. Pawelski, 626 So.2d 291, 292 (Fla. 4" DCA 1993) (the measure of damages in replacing an old roof at the end of its life expectancy is not the cost of the new roof, but rather the replacement cost of the new roof, prorated to account for the increased life expectancy of the new roof). 32. WEATHERMASTER alleges that the damages complained of in ROYAL OAK’s Crossclaim are speculative, excessive, remote, contingent, prospective, uncertain, improbable, not reasonably ascertainable, unforeseeable, and not within the contemplation of the parties to their respective contracts at the time they were entered or otherwise. Such damages must provide some reasonable basis in the evidence for determining the amount of damages with such certainty as would satisfy the mind of a prudent and impartial person. See W.W. Gay Mechanical Contractor v. Wharfside Two, Ltd., 545 So. 2d 1348 (Fla. 1989); Twyman v. Roell, 166 So. 215 (Fla. 1936); Resolution Trust Corp. v. Stroock & Lavan, 853 F. Supp. 1422 (S.D. Fla. 1994); John Hancock Mut. Life Ins. Co. v. Mark-A, Inc., 324 So. 2d 674 (Fla. 2d DCA 1955). 33. As the general contractor for the project, ROYAL OAK had a pecuniary interest in the outcome of the construction and the sales of the individual units at the Project. ROYAL OAK supplied the plans and specifications to guide the subcontractors in the construction of the Project. The subcontractors relied upon the information provided by ROYAL OAK. Moreover, ROYAL Milne Law Group, P.A. 301 East Pine Street * Suite 525 * Orlando, FL 32801 (321) 558-7700 * (407) 641-2111-Fax ¢ www.milnelawgroup.com 13 OAK had personnel at the Project to guide the subcontractors in the means and methods to construct the Project. ROYAL OAK failed to exercise reasonable care or competence as the general contractor in communicating the information to the subcontractors. Consequently, ROYAL OAK’s claims against the subcontractors in this action must be reduced or barred accordingly. 34. WEATHERMASTER has at all times adhered to the applicable building codes, plans, and specifications provided by the owner and its representatives, the general contractor, architect, and/or engineers. To the extent that any defect or failure has arisen in the scope of the work by, it is caused in whole or in part by defects caused by improper design or work on the part of the aforementioned entities or individuals, and is not the fault of WEATHERMASTER. Therefore, ROYAL OAK is barred from recovery against WEATHERMASTER. 35. Any claims by Plaintiff and/or ROYAL OAK for latent defects are time barred in accordance with the Statute of Repose and Statute of Limitations pursuant to Fla. Stat. § 95.11(3)(c). 36. ROYAL OAK cannot recover for contractual indemnity because the indemnification provision contained in WEATHERMASTER contract does not include a monetary limitation as required by Fla. Stat. § 725.06(1) 37. WEATHERMASTER affirmatively asserts that any alleged defects in WEATHERMASTER’s scope of work are wholly the result of normal wear and tear and/or damages due to weather conditions or other causes or circumstances. 38. ROYAL OAK’s claims for alleged damages allegedly due from construction defects are barred to the extent they are proven to actually be caused by design defects. Milne Law Group, P.A. 301 East Pine Street * Suite 525 * Orlando, FL 32801 (321) 558-7700 * (407) 641-2111-Fax ¢ www.milnelawgroup.com 14 39. Section 553.84 of the Florida Statutes does not apply to WEATHERMASTER because the required building permits for the subject homes were obtained and a local government or public agency official with authority to enforce the Florida Building Code approved the plans. 40. Section 553.84 of the Florida Statutes does not apply to WEATHERMASTER because the subject properties passed all required inspections under the Florida Building Code. Al. Section 553.84 of the Florida Statutes does not apply to WEATHERMASTER because there is no personal injury or damage to property other than the subject homes themselves which is the subject of the permits, plans, and inspections. 42. Section 553.84 of the Florida Statutes does not apply to WEATHERMASTER because WEATHERMASTER did not know and should not have known that a purported violation(s) of the Florida Building Code existed. Respectfully submitted, 4s/ Peter J. Kapsales PETER J. KAPSALES, ESQ. Florida Bar No.: 91176 SHAWN M. TRAUTMAN, ESQ. Florida Bar No.: 124269 MILNE LAW GROUP, P.A. 301 East Pine Street, Suite 525 Orlando, Florida 32801 Tel: (321) 558-7700 Fax: (407) 641-2111 Email: pkapsales@milnelawgroup.com strautman@milnelawgroup.com eservice@milnelawgroup.com Attorneys for Defendant/Crossclaim Defendant, Weathermaster Building Products, Inc. Milne Law Group, P.A. 301 East Pine Street * Suite 525 * Orlando, FL 32801 (321) 558-7700 * (407) 641-2111-Fax ¢ www.milnelawgroup.com 15 CERTIFICATE OF SERVICE WE HEREBY CERTIFY that on this 21" day of May 2021, a true and correct copy of the foregoing was filed with the Clerk of the Circuit Court using the Florida Courts’ e-Filing Portal, which will deliver electronic copies of said filing pursuant to Fla. R. Jud. Admin. 2.516 to the designated email addresses of all counsel of record. 4s/ Peter J. Kapsales PETER J. KAPSALES, ESQ. Milne Law Group, P.A. 301 East Pine Street * Suite 525 * Orlando, FL 32801 (321) 558-7700 * (407) 641-2111-Fax ¢ www.milnelawgroup.com 16