Motion,Ex Parte: VILLAS AT EMERALD LAKE HOMEOWNERS ASSOCIATION INC vs. ROYAL OAK HOMES LLC

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                                Filing # 127204068 E-Filed 05/20/2021 12:49:41 PM



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

        VILLAS       AT EMERALD                  LAKE    HOMEOWNERS
        ASSOCIATION,             INC.,       a    Florida       not     for   profit
        corporation,

                 Plaintiff,
                                                                                           Case No.: 2020-CA-002942
        Vv.


        ROYAL OAK HOMES, LLC, a Florida limited
                                                                                       CROSSCLAIM DEFENDANT
        liability company; ADVANCED WRAPPING AND
                                                                                       WEINTRAUB’S MOTION TO
        CONCRETE          SOLUTIONS  OF   CENTRAL
                                                                                       DISMISS  COUNT  25 OF
        FLORIDA, INC., a Florida corporation; DON
                                                                                       AMENDED CROSSCLAIM
        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;
        EXPERT PAINTING & PRESSURE                                    WASHING,
        INC., a Florida corporation;

                 Defendants.
                                                                                   /

        WEATHERMASTER            BUILDING                        PRODUCTS,
        INC., a Florida Corporation;

                 Third-Party Plaintiff,
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.
                                                             /

ROYAL OAK HOMES,                  LLC,   a Florida     limited
liability company;

          Crossclaim Plaintiff,

Vv.

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;
WOLF’S IRRIGATION & LANDSCAPING, INC.,
a   Florida    corporation;     BROWN+COMPANY
ARCHITECTURE, INC., a Florida corporation;
EXPERT PAINTING & PRESSURE WASHING,
INC., a Florida corporation;

          Crossclaim Defendants.
                                                                 /

                           CROSSCLAIM          DEFENDANT WEINTRAUB’S
MOTION TO DISMISS COUNT 25 OF AMENDED CROSSCLAIM

         Defendant / Crossclaim Defendant, WEINTRAUB            INSPECTIONS       & FORENSIC,      INC.,

n/k/a WEINTRAUB ENGINEERING AND INSPECTIONS, INC. (“Weintraub”), by and through

its undersigned counsel, hereby files its Motion to Dismiss Count 25 of Defendant / Crossclaim

Plaintiff, ROYAL     OAK     HOMES,    LLC’s (“Royal Oak”), Amended Crossclaim, and in support

thereof states as follows:

                        Factual Background and Summary of Argument

         This dispute arises out of the construction of the townhomes and common areas at the

Villas at Emerald Lake community located in Osceola County, Florida (the “Project”).               In its

Amended Crossclaim, Royal Oak alleges claims against Weintraub in Counts 23, 24, and 25 for

Breach   of Contract,   Negligence,    and Violation   of the Florida    Building Code,    respectively.

Weintraub has answered Counts 23 and 24, but as set forth in greater detail below, Royal Oak’s

claim against Weintraub       for Violation of the Florida Building Code (Count 25) should be

dismissed for failure to state a cause of action.

                                      Motion to Dismiss Standard

         A motion to dismiss tests a complaint’s legal sufficiency.     In re: Forfeiture of 2007 Ford

£350 Pickup Truck, 987 So. 2d 148, 149 (Fla. 2d DCA 2008) (quoting Barbado v. Green and

Murphy PA, 758 So. 2d 1173, 1174 (Fla. 4° DCA 2000)). “Upon a motion to dismiss a complaint

for failure to state a cause of action, all material allegations of the complaint are taken as true . . .

[and] then reviewed in light of the applicable substantive law to determine the existence of a cause

of action.” Blue Supply Corp. v. Novos Electro Mechanical, Inc., 990 So. 2d 1157, 1159 (Fla. 3d

DCA 2008).     “To survive a motion to dismiss, a complaint must allege ‘sufficient ultimate facts’

showing entitlement to relief.” Stein v. BBX Capital Corp., 241 So. 3d 874, 876 (Fla. 4th DCA
2018).      “Florida is a fact-pleading jurisdiction. .         Florida's pleading rule forces counsel

to recognize the elements of their cause of action and determine whether they have or can develop

the facts necessary to support it, which avoids a great deal of wasted expense to the litigants and

unnecessary judicial effort.” Horowitz v. Laske, 855 So. 2d 169, 172-73 (Fla. 5th DCA 2003).

                                               Argument

         Royal Oak’s claim against Weintraub for Violation of the Florida Building Code (Count

25) should be dismissed for failure to state a cause of action.       More specifically, Royal Oak has

failed to state a cause of action against Weintraub under section 553.84, Florida Statutes, because

Weintraub,     as an inspector,   is not subject to liability under       section 553.84,   Florida   Statutes.

Section 553.84, Florida Statutes, provides that

                  any person . . . damaged as a result of a violation of this part or the
                  Florida Building Code, has a cause of action in any court of
                  competent jurisdiction against the person or party who committed
                  the violation... .

§ 553.84, Fla. Stat. (emphasis added).       The plain language of section 553.84, Florida Statutes,

unequivocally limits the universe of potentially liable parties to only those entities that actually

committed the building code violation.

         Consistent with the plain language of the statute, Florida caselaw is clear that a claim under

section 553.84, Florida Statutes, cannot be properly stated against an entity that did not construct,

erect, alter, repair, or demolish the building in question.       See Casa Clara Condo. Ass’n, Inc. v.

Charley Toppino & Sons, Inc., 588 So. 2d 631, 634 (Fla. 3d DCA 1991), approved, 620 So. 2d

1244 (Fla. 1993) (claim for building code violation under section 553.84, Florida Statutes, was not

permitted    against a materials    supplier because      the materials     supplier   did not perform     any

“construction, erection, alteration, repair, or demolition” of the structure); see also Scherer v.

Villas Del Verde Homeowners Ass'n, Inc., 55 So. 3d 602, 604 (Fla. 2d DCA                 2011) (holding that
primary qualifying agent’s failure to supervise company’s defective construction did not give rise

to a cause     of action under   section   553.84,   Florida    Statutes,    and   stating “Scherer's   failure to

supervise was not a violation of the building code.”); 8 Fla. Prac., Constr. Law Manual § 16:6

(2019-2020 ed.) (“a supplier, or other person who does not perform installation with code

    ‘equirements, is not subject to an action for violation of the code.”) (emphasis added).

           Royal Oak alleges that Weintraub “was hired by Royal Oak to provide inspection services

for certain townhome units at the Subject Property,”! but Royal Oak has not alleged (and cannot

in good faith allege) that Weintraub performed any installation, construction, erection, alteration,

repair, or demolition of any buildings at the Subject Property.             Accordingly, Royal Oak has failed

to state a cause of action against Weintraub under section 553.84, Florida Statutes, and Count 25

of Royal Oak’s Amended Crossclaim must be dismissed.

           WHEREFORE, Weintraub respectfully requests that this Court enter an Order in its favor,

dismissing Count 25 of Royal Oak’s Amended Crossclaim against Weintraub and awarding such

other and further relief as this Court may deem just and proper.


                                                            /s/ Andrew E. Holway
                                                            Timothy C. Ford
                                                            Florida Bar No. 173770
                                                               Andrew E. Holway
                                                               Florida Bar No. 098559
                                                               Hill Ward Henderson
                                                               101 E. Kennedy Blvd., Suite 3700
                                                               Tampa, Florida 33602
                                                               Telephone: 813-221-3900
                                                               Fax: 813-221-2900
                                                               Email: tim.ford@hwhlaw.con
                                                               Email: andrew.holway@hwhlaw.com
                                                               Secondary: tracy.coale@hwhlaw.com
                                                               kathy.wernsing@hwhlaw.com
                                                               derrick.calandra@hwhlaw.com



1     13, Amended Crossclaim.
Attorneys for Weintraub Inspections &
                                                        Forensic, Inc.



                                   CERTIFICATE OF SERVICE

         I certify that a true and correct copy of the foregoing has been electronically served through

the Florida Courts E-Filing Portal to all parties and/or counsel of record on May 20, 2021.

                                                        /s/ Andrew E. Holway
                                                        Attorney




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