Preview
Filing # 127297422 E-Filed 05/21/2021 01:37:13 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.
AMENDED MOTION TO DISMISS ASSOCIATION’S AMENDED COMPLAINT AND
MOTIONS TO STRIKE CLAIMS FOR ATTORNEYS FEES AND PREJUGMENT
INTEREST
Pursuant to the Florida Rules of Civil Procedure, specifically Rules 1.110 and 1.140,
Defendant, BROWN + COMPANY ARCHITECTURE, INC., (“Brown”) respectfully moves this
Court for entry of an Order to dismiss Plaintiff, VILLAS AT EMERALD LAKE HOMEOWNERS
ASSOCIATION, INC.’s (hereinabove and after, the “Association”) Amended Complaint and for
the entry of Orders striking the Association’s claims for attorney’s fees and pre-judgment interest,
and in support thereof states as follows:
SUMMARY OF ARGUMENTS
Count XXVIII for Violation of the Florida Building Code (the “FBC”) fails to allege that
Brown’s professional services violated any provision of the FBC, which must be specifically
identified, and Brown cannot be held liable under Section 553.84 as a design-only professional.
Count XXIX for Professional Negligence fails because the Association fails to allege any
wrongdoing falling within Brown’s scope of services. All the alleged defects are construction,
installation, and/or lack of maintenance defects. See Amend. Compl. {{] 285 & 1-67. The
Association fails to allege that any action, error or omission in Brown’s designs or professional
services are legal causes of the alleged damages.
The Amended Complaint re-alleges, without differentiation, Amended Complaint
paragraphs 1- 67 into every count of the Amended Complaint regardless of which entity is the
focus of that Count. This practice of commingling factual allegations and legal conclusions as to
other defendants in a count that only applies to one of the defendants is not permissible in Florida,
and requires the Amended Complaint be dismissed.
Counts XXVIII and XXIX include internally inconsistent allegations within each count.
Florida law mandates that if there are inconsistent allegations within a single count the inconsistent
allegations neutralize each other and render the count insufficient on its face, therefore, Counts
XXVIII and XXIX must be dismissed. Florida law also requires that an Amended
Complaint contain sufficient allegations of ultimate fact to show the pleader is entitled to relief,
and to acquaint the defendant with the plaintiff's charge of wrongdoing so that the defendant may
intelligently answer. Here, the Association fails to state any negligent action, error, or omission of
Brown, attributes no specific defects or violations of the Florida Building Code (FBC) to Brown,
and of those averments the Association does make they are so inconsistent as to prevent Brown
from intelligently responding.
INTRODUCTION
1 “This is an action for damages arising from . . . the design, construction, and sale
of the townhomes and common areas at Villas at Emerald Lake in Kissimmee, Osceola County,
Florida (the “Community” or the “Townhomes” ”. Amend. Compl. 1.
:
2. “The community consists of twelve (12) residential buildings with approximately
89 residential units, plus a clubhouse and other common areas.” Amend. Compl. § 41.
3 On or about November 23, 2020, VILLAS AT EMERALD LAKE
HOMEOWNERS’ ASSOCIATION, INC., the Association that controls the Community (The
“Association”), filed suit against BROWN + COMPANY ARCHITECTURE, INC. (“Brown”),
and others, alleging “damages arising from the negligent and defective development, design,
construction, and sale” of the Community, as well as the following counts specific to Brown: Count
XXVIII — Violation of Florida Building Code (against Brown), and Count XXIX — Professional
Negligence (against Brown). Compl. 1, 270 — 279 & 280 — 285. The Association’s Amended
Complaint is attached hereto and incorporated herein as Exhibit “A”.
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
Amended 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 Amended 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
4
defendant was engaged in wrongdoing. Turnberry Vill. N. Tower Condo. Ass'n, Inc. v. Turnberry
Vill. S. Tower Condo. Ass'n, Inc., 224 So. 3d 266 (Fla. 3rd DCA 2017).
To survive such a motion, the Amended 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 Amended 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 Amended 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).
I. COUNT XXVIII for Violation of Florida Building Code: Fla. Stat. 553.84 should be
dismissed because the Association fails to allege any act, error, or omission on the part of
Brown that violates any specific provision of the FBC and because Brown is a design
professional.
Florida Statute 553.84 creates a cause of action for violation of the FBC. Brown was an
architect involved in the development of the Community. However, 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.LA. 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. Section 553.84 of the FBC 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)
A design professional’s duty is rooted in common law. As long as a design professional
uses the ordinary reasonable skill of other professionals in the community to draft code-compliant
plans, the common law duty is met. Sch. Bd. of Broward Cty. v. Pierce Goodwin Alexander &
Linville, 137 So. 3d 1059, 1065 (Fla. 4th DCA 2014). Because design professionals have a
common law duty to comply with applicable building codes, failure to follow those codes
constitutes evidence of negligence. See Brogdon v. Brown, 505 So. 2d 19, 20 (Fla. 3d DCA 1987)
Holding design professionals liable under the Florida Building Code, in addition to their
common law duty to comply with codes and ordinances, is repetitive and not in the spirit of the
Florida Building Code. Brown, as a design professional, is not beholden to a cause of action under
Section 553.84 because it was created to provide a cause of action against construction
professionals, not design professionals.
Even if the FBC, and the private cause of action created by Fla. Stat. Section 553.84 did
apply to a design professional like Brown, which it does not, the Association has still failed to
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identify any specific provisions of the FBC that Brown has violated. In fact, there are no specific
provisions of the FBC alleged anywhere in the Association’s Amended Complaint. As such, the
Association fails to allege Brown’s professional services violated any provision of the FBC and
Brown cannot be held liable under Section 553.84 as a design professional. Accordingly, Brown
respectfully requests that this Court dismiss Count XXVIII of the Amended Complaint against
Brown with prejudice because the Amended Complaint fails to properly state a cause of action for
violation of the Florida Building Code.
Il. Count XXIX alleging Professional Negligence should be dismissed because Brown was not
the proximate cause of any alleged damages and because Plaintiff fails to allege the necessary
elements.
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).
Here, the Amended Complaint fails to allege any ultimate facts that demonstrate a breach
by Brown, or a causal connection between any breach by Brown and the alleged damages. The
Amended Complaint fails to allege any wrongdoing falling within Brown’s scope of services as
alleged within the Amended Complaint, as all the alleged defects are construction, installation,
and/or lack of maintenance defects. See Compl. {J 285, 63 & 64. There are no alleged defects that
are based on faulty or improper design. There is nothing in the Amended Complaint to establish
that Brown caused any of the alleged damages, or that Brown breached any duty within Brown’s
scope of services.
Thus, the essential elements for a professional negligence against Brown have not been
properly plead or established. Accordingly, Brown respectfully requests that this Court dismiss
Count XXIX of the Amended Complaint against Brown because the allegations are mere
mechanical recitations of the elements of Professional Negligence, the allegations are conclusory
as to Brown engaging in wrongdoing with no allegations as to Brown’s acts, errors or omissions,
and all the alleged defects in the Amended Complaint are outside Brown’s scope of services.
Wil. The Amended Complaint should be dismissed for improperly comingling
separate and distinct factual allegations and claims.
The comingling of separate claims warrants dismissal of the Amended Complaint. Aspsoft,
Inc. v. WebClay, 983 So.2d 761, 768 (Fla. Sth DCA 2008). Florida Rule of Civil Procedure
1.110(f) provides as follows:
Separate Statements. All averments of claim or defense shall be
made in consecutively numbered paragraphs, the contents of each
of which shall be limited as far as practicable to a statement of a
single set of circumstances, and a paragraph may be referred to by
number in all subsequent pleadings. Each claim founded upon a
separate transaction or occurrence and each defense other than
denials shall be stated in a separate count or defense when a
separation facilitates the clear presentation of the matter set
forth. (See Fla. R. Civ. Pro. 1.110()
In K.R. Exch. Servs. v. Fuerst, Humphrey, Ittleman, PL, the Third District Court of Appeals
affirmed dismissal, specifically because of the counts “contain[ing] allegations and legal
conclusions that improperly refer to [multiple defendants without] differentiat[ing] among the
various defendants’ actions and statements.” K.R. Exch Servs. v. Fuerst, Humphrey, Ittleman, PL.
48 So, 3d 889, 893 (Fla. 3d DCA 2010). This practice of commingling factual allegations and legal
conclusions as to other defendants in a count that only applies to one of the defendants is not
permissible in Florida.
In the instant matter, The Amended Complaint re-alleges, without differentiation,
Amended Complaint paragraphs 1- 67 into every count of the Amended Complaint regardless of
8
which entity is the focus of that Count. Amend. Compl. ff 68, 74, 81, 90, 96, 103, 112, 118, 125,
134, 143, 149, 158, 164, 173, 179, 188, 194, 203, 209, 218, 224, 233, 239, 248, 254, 264, 270 &
280. However, each of the Defendants have separate and distinct, contractual obligations, duties,
scopes of work or services, liabilities, and standards of care. Still, the Association treats all the
Defendants the same and comingles the vague descriptions of each and every alleged defect into
every count with no meaningful connection or distinction between the actions, omissions, or
scopes of work or services of each Defendant. /d. Not only is such lack of specificity a violation
of Rule 1.110(f) of the Florida Rules of Civil Procedure, and other previously noted Florida Law,
but this failure to differentiate unjustly prevents the Defendants from providing an intelligent
answer or formulating a defense. Inevitably, the Association’s lack of differentiation will, and has
already, caused unnecessary confusion and reduced judicial efficiency, as this Motion to Dismiss
would not have been filed, if the allegations and counts of the Amended Complaint had been
specifically tailored to each Defendant within each count.
WHEREFORE, the Association’s entire Amended Complaint should be dismissed for
failure to satisfy Florida’s pleading requirements pursuant to Fla. Civ. P. R. 1.110(f). Further, the
entire Amended Complaint should be dismissed, as it applies to Brown, because the extremely
vague allegations re-alleged in all counts, including in counts XXVIII and XXIX against Brown,
fail to set forth the ultimate facts that connect the defects to Brown and its scope of services with
the necessary clarity to allow Brown to provide an intelligent answer or formulate its defense to
either count.
IV. COUNTS XXVIII and XXIX must be dismissed as they contain internally inconsistent
allegations, and do not plead a short and plain statement of ultimate facts showing that the
Association is entitled to relief.
The Association not only comingles Amended Complaint paragraphs 1-67 into every count
of the Amended Complaint regardless of defendant, but the Association has also incorporated
9
internally inconsistent allegations into Counts XXVIII and XXIX causing those counts to be
insufficiently pled. The Florida Supreme Court has held that:
where there are contradictory, repugnant, or inconsistent
statements in a pleading, such statements would have the effect of
neutralizing each other, and that such pleading would be held bad
on demurrer. See Hoopes Bros. v. Crane, 56 Fla. 395,47 South.
992, and State v. Seaboard Air Line Ry., 56 Fla. 670, 47 South. 986.
American Fire Ins. Co. v. King Lumber & Mfg. Co., 74 Fla. 130, 150-51 (Fla. 1917), and Don
M: ar, Inc. v. Gillis, 483 So.2d 870, n.1 (Fla. 5° DCA 1986)( “.. . Hoopes v. Crane, 56 Fla. 395,
47 So. 992 (1908), hold merely that contradictory allegations within a single count neutralize each
other and render the count insufficient on its face.”); See also Peacock v. General Motors
Acceptance Corp., 432 So.2d 142 (Fla. 18‘ DCA 1983).
Additionally, Florida Civil Procedure Rule 1.110 requires:
(b) Claims for Relief. A pleading which sets forth a claim for relief,
..., must state a cause of action and shall contain . . . (2) a short and
plain statement of the ultimate facts showing that the pleader is
entitled to relief,....
Fla. Civ. P. R. 1.110 (b)(2).
In Count XXVIII, the Association alleges that Brown had a duty to design, develop, and
construct all the common areas and townhomes, and that Brown actively participated in design,
construction, and supervised how the townhomes and common areas were designed, and
constructed. Compl. {| 253. However, Count XXVIII also alleges that Brown was responsible for
“the design of the Townhomes developed by Royal Oak”. Compl. §] 35 & 251. Therefore, the
allegations of Count XXVIII assert internally inconsistent facts regarding Brown’s scope of
services during the development of the Community. The same internal inconsistency occurs within
Count XXIX. Compl. {J 261 & 265.
10
Further, in Count XXIX it is alleged that Brown breached the duty to design the
Townhomes, by “. . . negligently providing . . . supervision, oversight, and/or inspection services
in a professional work like manner . . .” Amend. Compl. {{ 37, 272 & 284. Given a comparative
reading of Amend. Compl. {J 37, 272 & 284, there is no consistency within the Amended
Complaint, or within Counts XXVIII and XXIX, as to Brown’s scope of services or any breach
thereof.
Additionally, the Association fails to state Brown’s alleged wrongdoing. Instead of
attributing specific defects to Brown from those listed in Amended Complaint Paragraphs 1-64
with accompanying ultimate facts to show the Association is entitled to relief against Brown, the
Association instead alleges that Brown is at fault for all defects allegedly attributable to Royal
Oak, ROH Subcontractors and ROH Design Professionals, even though Brown was only
responsible for the design of the Townhomes. Amend. Compl. {J 51, 274, 63, 64, & 285.
Therefore, the Association’s allegations of wrongdoing by Brown are so vague as to be
unanswerable. Moreover, those few averments the Association makes regarding what Brown was
allegedly responsible for at the Community are so confused by ever changing and internally
inconsistent assertions that Brown cannot intelligently respond. Amend. Compl. {{ 37, 270, 272,
274, 280, 282 & 284.
WHEREFORE, the Association’s entire Amended Complaint, especially Counts XXVIII
and XXIX as to Brown, must be dismissed for failure to sufficiently plead the causes of action on
their face by alleging or incorporating internally inconsistent allegations in both counts as well as
the Amended Complaint at large.
11
MOTIONS TO STRIKE
1 Motion to Strike Claim for Attorneys’ Fees
“Tt is well-settled that attorneys’ fees can derive only from either a statutory basis or an
agreement between the parties.” Trytek v. Gale Industries, Inc., 3 So.3d 1194, 1198 (Fla. 2009)
(citing State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830, 832 (Fla. 1993)). In the instant matter,
the Amended Complaint alleges that:
As a result of the defects identified in paragraphs 51-61, the
Association and its member have been damaged and injured. The
damages include vii. All costs incurred to prosecute this
lawsuit; and ix. Pre-judgment interest.
Amend. Compl. §/ 64, WHEREFORE of counts XXVIII & XXIX.
In so far as the above quoted language is a claim for attorney’s fees, the Association fails to
state any statutory or contractual basis for entitlement to attorneys’ fees. Accordingly, the
Association’s claim for attorneys’ fees against Brown should be stricken.
Il. Motion to Strike Claim for Prejudgment Interest
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. a 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. 1" DCA 1982)).
12
In the instant matter, the Amended Complaint contains demands for prejudgment interest.
Compl. §{[ 64, WHEREFORE of counts XXVIII & XXIX. 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 Association fails to allege any
legal basis for entitlement to prejudgment interest. Accordingly, Association’s claim 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 21st day of May, 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
bealderon@milbermakris.com
dhili@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
13
201 East Pine Street — Suite 600
Orlando, FL 32801
pioseph@balijanik.com
esmall@balljanik.com
jwidelitz@balljanik.com
nyargo@ballianik.on
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
14
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
mumilligan@ 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.
15
Filing # 125919197 E-Filed 04/30/2021 10:33:18 AM
1°
Hi A & PA
A \.
THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT IN AND
FOR OSCEOLA COUNTY, FLORIDA
VILLAS AT EMERALD LAKE HOMEOWNERS Case No.: 2020-CA-002942
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;
Defendants.
ROYAL OAKS HOME, LLC.,
Cross-Claimant,
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.,
WOLF'S IRRIGATION & LANDSCAPING, INC.,
a Florida corporation; BROWN+COMPANY
ARCHITECTURE, INC., a Florida corporation;
Cross-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.
PLAINTIFF’S NOTICE OF FILING AMENDED COMPLAINT
Plaintiff, VILLAS AT EMERALD LAKE HOMEOWNERS ASSOCIATION, INC., by
and through its undersigned counsel, hereby gives notice of filing its Amended Complaint pursuant
to the operative Case Management Order (docket #223).
DATED: April 30, 2021.
BALL JANIK LLP
By: _/s/ Allana D.E. Smith, Esq.
Phillip E. Joseph, FL Bar No. 1000368
Evan J. Small, FL Bar No. 57306
Nicholas B. Vargo, FL Bar No. 121269
Allana D.E. Smith, FL Bar No. 1025757
201 E Pine Street, Suite 600
Orlando, FL 32801
Telephone: (407) 455-5664
Facsimile: (407) 902-2105
pjoseph@balljanik.com
esmal!l@balljanik.com
vargo@balljanik.com
smith@balljanik.com
ypalmer@balljanik.com
cbetancourt@balljanik.com
nwise@balljanik.com
dmiksell@balljanik.cor
orlandodocket@balljanik.com
Counsel for Plaintiff Villas at Emerald Lake
Homeowners Association, Inc.
CERTIFICATE OF SERVICE
I certify that a true copy of the foregoing has been filed via the Florida Courts E-Filing
Portal on this 30" day of April, 2021.
/s/ Allana D.E. Smith, Esq.
Allana D.E. Smith, Esq.
SERVICE LIST
LANNIE D. HOUGH JR. THAMIR A.R. KADDOURI, JR.
ROBIN H. LEAVENGOOD PENELOPE T. ROWLETT
JAMES MICHAEL WALLS BETH ANN TOBEY
BRIAN C. PORTER Law Office of Thamir A.R. Kaddouri, Jr. P.A
Carlton Fields, P.A. 3220 West Cypress Street
4221 W. Boy Scout Boulevard Tampa, FL 33607
Tampa, FL 33607-5780 P. 813-879-5752
P. 813-223-7000 F. 813-879-5707
F, 813-229-4133 Thamir.kaddouri@tampalaw.org
lhough@carltonfields.com ervice@tampalaw.org
nbonilla@carltonfields.com beth.tobe tampalaw.or:
vwilliams@carltonfields.com
rleavengood@carltonfields.com Counsel for Defendant, Imperial Building
brosa@carletonfields.com Corporation
bporter@carltonfields.com
jcostello@carltonfields.com
mwalls@carltonfields.com
Counsel for Defendant, Royal Oak Homes,
LLC
PAUL SIDNEY ELLIOTT PETER J. KAPSALES
P.O. Box 274204 MARGARET M. EFTA
Tampa, FL 33688-4204 Milne Law Group, P.A.
301 E. Pine Street, Suite 525
P. 813-265-1314
Orlando, FL 32801
F. 813-961-1103 P. 321-558-7700
pse@psejd.com pkapsales@milnelawgroup.com
mefta@milnelawgroup.com
Counsel for Defendant, Hugh MacDonald eservice@milnelawgroup.com
Construction, Inc. (HMC)
Counsel for Defendant, Weathermaster
Building Products, Inc.
DENISE M. ANDERSON
ASHLEY M. MATTINGLY
Butler Weihmuller Katz Craig LLP
400 N. Ashley Drive, Suite 2300
Tampa, FL 33602
P. 813-281-1900
danderson@butler.legal
matting! butler.legal
jjacobs butler.legal
jorge@butler.legal
Co-Counsel for Defendant, Hugh MacDonald
Construction, Inc.
DENISE M. ANDERSON TIMOTHY C. FORD
KATE F. GASET ANDREW E. HOLWAY
Butler Weihmuller Katz Craig, LLP Hill Ward Henderson
101 E. Kennedy Blvd., Suite 3700
400 N. Ashley Drive, Suite 2300
Tampa, FL 33602
Tampa, FL 33602
P. 813-221-3900
danderson@butler.legal F. 813-221-2900
kgaset@pbutler.legal Tim.ford@hwhlaw.com
dwhite@pbutler.legal Andrew. holway@hwhlaw.com
krieck@butler.legal Tracy.coale@hwhlaw.com
jorge@butler.legal Kathy.wernsing@hwhlaw.com
Derrick.calandra@hwhlaw.com
Counsel for Defendant, Don King’s Concrete, Counsel for Defendant, Weintraub
Ine. Inspections & Forensics, Inc. n/k/a Weintraub
Engineering and Inspections, Inc.
JAYNE ANN PITTMAN BRUCE R. CALDERON
NATALIE C. FISCHER D. BRYAN HILL
Conroy Simberg AUDRA R. CREECH
Milber Makris Plousadis & Seiden, LLP
Two South Orange Avenue, Suite 300
1900 NW Corporate Blvd.
Orlando, FL 32801 East Tower, Suite 440
P. (407) 649-9797 Boca Raton, FL 33431
F. (407) 649-1968 P. (561) 994-7310
eserviceorl@conroysimberg.com F. (561) 994-7313
jpittman@conroysimberg.com bealderon@milbermakris.com
mmaitland@conroysimberg.com dhill milbermakris.com
creech@milbermakris.com
nfischer@conroysimberg.com
kmedowell@milbermakris.com
Counsel for Defendant, Advanced Wrapping Counsel for Defendant, Brown + Company
and Concrete Solutions of Central Florida, Architecture, Inc.
Inc.
ERIC J. NETCHER S. SCOTT ROSS
Walker, Revels, Greninger & Netcher PLLC Groelle & Salmon, P.A.
189 S. Orange Ave., Suite 1830 1715 N. Westshore Blvd., Suite 320
Tampa, FL 33607
Orlando, FL 32801
P. (813) 849-7200
P. (407) 789-1830 gstcourtdocs@gspalaw.com
netcher@wrgn-law.com ross@gspalaw.com
hpayesh@wrgn-law.com ebanks@gspalaw.com
mcoleman@gspalaw.com
Counsel for Third-Party Defendant, All Glass
Counsel for Third-Party Defendant, Helberg
Installation Corp.
Enterprises, LLC
VICKI LAMBERT ANDREW T. MARSHALL
ALEC MASSON Hamilton, Price & Marshall, P.A.
Luks, Santaniello, Petrillo & Cohen 2400 Manatee Ave. W.
Bradenton, FL 34205
201 S. Orange Avenue, Suite 400
P. 941-748-0550
Orlando, FL 32801
F. 941-745-2079
P. 407-540-9170 andrew@hamiltonpricelaw.com
F. 407-540-9171 nancy@hamiltonpricelaw.com
Luksorl-pleadings@Is-law.com kelsey@hamiltonpricelaw.com
imason{ insurancedefense.net
jpestonit@insurancedefense.net Counsel for T&M Construction of Sanford,
Ine.
Counsel for Third-Party Defendant, Casey
Hawkins Glass, Inc.
PHILLIP S. HOWELL
KYLE MCNEAL
Galloway, Johnson, Tompkins, Burr & Smith,
P.L.C.
400 N. Ashley Dr., Suite 1000
Tampa, FL 33602
P. 813-977-1200
F. 813-977-1288
tampaservbice@gallowaylawfirm.com
phowell@gallowaylawfirm.com
kmcneal@gallowaylawfirm.com
Co-Counsel for Third-Party Defendant,
Casey Hawkins Glass, Inc.
BRUCE R. CALDERON COLE J. COPERTINO, ESQUIRE
D. BRYAN HILL Wright, Fulford, Moorhead & Brown, P.A.
AUDRA R. CREECH 505 Maitland Avenue, Suite 1000
Altamonte Springs, Florida 32701
Milber Makris Plousadis & Seiden, LLP
P. (407) 425-0234
1900 NW Corporate Blvd., East Tower, Suite
F. (407) 425-0260
440 copertino@wfmblaw.com
cbraungart@wfmblaw.com
Boca Raton, FL 33431 lwilliams@wfmblaw.com
P. 561-994-7310
F. 561-994-7313 Counsel for Well Hung Windows & Doors
bealderon@milbermakris.com
dhill milbermakris.com
creech@milbermakris.com
Counsel for Defendant, Brown + Company
Architecture, Inc.
JOSEPH L. ZOLLNER
Law Office of Amy L. Warpinski
PO Box 7217
London, KY 40742
P. 904-346-5422
F. 866-270-1372
FloridaCDLegalMail@LibertyMutual.com
joseph.zollner@libertymutual.com
Counsel for Lios Concrete Corp
THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT IN AND
FOR OSCEOLA COUNTY, FLORIDA
VILLAS AT EMERALD LAKE HOMEOWNERS | Case No.: 2020-CA-002942
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;
EXPERT PAINTING & PRESSURE WASHING,
INC., a Florida corporation;
Defendants.
ROYAL OAKS HOME, LLC.,
Cross-Claimant,
Vv.
ADVANCED WRAPPING AND CONCRETE
SOLUTIONS OF CENTRAL FLORIDA, INC., a
Florida corporation; DON KING'S CONCRETE,
INC., a Florida corporation; HUGH MACDONALD
Page 1 of 69
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;
Cross-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.
AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
Plaintiff VILLAS AT EMERALD LAKE HOMEOWNERS ASSOCIATION, INC. (the
“Association’”), by and through undersigned counsel, hereby sues Defendants ROYAL OAK
HOMES, LLC (“ROYAL OAK”); ADVANCED WRAPPING AND CONCRETE SOLUTIONS
Page 2 of 69
OF CENTRAL FLORIDA, INC. (“ADVANCED”); DON KING’S CONCRETE, INC. (“DON
KING”); HUGH MACDONALD CONSTRUCTION, INC. (“HUGH MACDONALD”);
IMPERIAL BUILDING CORPORATION (“IMPERIAL”); PREMIER PLASTERING OF
CENTRAL FLORIDA, INC. N/K/A TGK STUCCO, INC. (“PREMIER”); WEATHERMASTER
BUILDING PRODUCTS, INC. (“WEATHERMASTER”); WEINTRAUB INSPECTIONS &
FORENSICS, INC. N/K/A WEINTRAUB ENGINEERING AND INSPECTIONS, INC.
(“WEINTRAUB”); THE DIMILLO GROUP, LLC (“DIMILLO”); WOLF’S IRRIGATION &
LANDSCAPING, INC. (“WOLF”); SUMMERPARK HOMES, INC. (“SUMMERPARK”);
BROWN+COMPANY ARCHITECTURE, INC. (“BROWN”); EXPERT PAINTING &
PRESSURE WASHING, INC. (“EXPERT PAINTING”) and seeks trial by jury. In support
thereof, the Association alleges as follows:
NATURE OF THE CASE
1 This is an action for damages arising from the negligent and defective development,
design, construction, and sale of the townhomes and common areas at Villas at Emerald Lake in
Kissimmee, Osceola County, Florida (the “Community” or the “Townhomes”), caused by the
Defendants.
JURISDICTION AND VENUE
2 This is an action for monetary damages in excess of $30,000.00, exclusive of
interest, costs, and attorney’s fees, and th
Preview
Filing # 127297422 E-Filed 05/21/2021 01:37:13 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. AMENDED MOTION TO DISMISS ASSOCIATION’S AMENDED COMPLAINT AND MOTIONS TO STRIKE CLAIMS FOR ATTORNEYS FEES AND PREJUGMENT INTEREST Pursuant to the Florida Rules of Civil Procedure, specifically Rules 1.110 and 1.140, Defendant, BROWN + COMPANY ARCHITECTURE, INC., (“Brown”) respectfully moves this Court for entry of an Order to dismiss Plaintiff, VILLAS AT EMERALD LAKE HOMEOWNERS ASSOCIATION, INC.’s (hereinabove and after, the “Association”) Amended Complaint and for the entry of Orders striking the Association’s claims for attorney’s fees and pre-judgment interest, and in support thereof states as follows: SUMMARY OF ARGUMENTS Count XXVIII for Violation of the Florida Building Code (the “FBC”) fails to allege that Brown’s professional services violated any provision of the FBC, which must be specifically identified, and Brown cannot be held liable under Section 553.84 as a design-only professional. Count XXIX for Professional Negligence fails because the Association fails to allege any wrongdoing falling within Brown’s scope of services. All the alleged defects are construction, installation, and/or lack of maintenance defects. See Amend. Compl. {{] 285 & 1-67. The Association fails to allege that any action, error or omission in Brown’s designs or professional services are legal causes of the alleged damages. The Amended Complaint re-alleges, without differentiation, Amended Complaint paragraphs 1- 67 into every count of the Amended Complaint regardless of which entity is the focus of that Count. This practice of commingling factual allegations and legal conclusions as to other defendants in a count that only applies to one of the defendants is not permissible in Florida, and requires the Amended Complaint be dismissed. Counts XXVIII and XXIX include internally inconsistent allegations within each count. Florida law mandates that if there are inconsistent allegations within a single count the inconsistent allegations neutralize each other and render the count insufficient on its face, therefore, Counts XXVIII and XXIX must be dismissed. Florida law also requires that an Amended Complaint contain sufficient allegations of ultimate fact to show the pleader is entitled to relief, and to acquaint the defendant with the plaintiff's charge of wrongdoing so that the defendant may intelligently answer. Here, the Association fails to state any negligent action, error, or omission of Brown, attributes no specific defects or violations of the Florida Building Code (FBC) to Brown, and of those averments the Association does make they are so inconsistent as to prevent Brown from intelligently responding. INTRODUCTION 1 “This is an action for damages arising from . . . the design, construction, and sale of the townhomes and common areas at Villas at Emerald Lake in Kissimmee, Osceola County, Florida (the “Community” or the “Townhomes” ”. Amend. Compl. 1. : 2. “The community consists of twelve (12) residential buildings with approximately 89 residential units, plus a clubhouse and other common areas.” Amend. Compl. § 41. 3 On or about November 23, 2020, VILLAS AT EMERALD LAKE HOMEOWNERS’ ASSOCIATION, INC., the Association that controls the Community (The “Association”), filed suit against BROWN + COMPANY ARCHITECTURE, INC. (“Brown”), and others, alleging “damages arising from the negligent and defective development, design, construction, and sale” of the Community, as well as the following counts specific to Brown: Count XXVIII — Violation of Florida Building Code (against Brown), and Count XXIX — Professional Negligence (against Brown). Compl. 1, 270 — 279 & 280 — 285. The Association’s Amended Complaint is attached hereto and incorporated herein as Exhibit “A”. 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 Amended 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 Amended 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 4 defendant was engaged in wrongdoing. Turnberry Vill. N. Tower Condo. Ass'n, Inc. v. Turnberry Vill. S. Tower Condo. Ass'n, Inc., 224 So. 3d 266 (Fla. 3rd DCA 2017). To survive such a motion, the Amended 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 Amended 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 Amended 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). I. COUNT XXVIII for Violation of Florida Building Code: Fla. Stat. 553.84 should be dismissed because the Association fails to allege any act, error, or omission on the part of Brown that violates any specific provision of the FBC and because Brown is a design professional. Florida Statute 553.84 creates a cause of action for violation of the FBC. Brown was an architect involved in the development of the Community. However, 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.LA. 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. Section 553.84 of the FBC 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) A design professional’s duty is rooted in common law. As long as a design professional uses the ordinary reasonable skill of other professionals in the community to draft code-compliant plans, the common law duty is met. Sch. Bd. of Broward Cty. v. Pierce Goodwin Alexander & Linville, 137 So. 3d 1059, 1065 (Fla. 4th DCA 2014). Because design professionals have a common law duty to comply with applicable building codes, failure to follow those codes constitutes evidence of negligence. See Brogdon v. Brown, 505 So. 2d 19, 20 (Fla. 3d DCA 1987) Holding design professionals liable under the Florida Building Code, in addition to their common law duty to comply with codes and ordinances, is repetitive and not in the spirit of the Florida Building Code. Brown, as a design professional, is not beholden to a cause of action under Section 553.84 because it was created to provide a cause of action against construction professionals, not design professionals. Even if the FBC, and the private cause of action created by Fla. Stat. Section 553.84 did apply to a design professional like Brown, which it does not, the Association has still failed to 6 identify any specific provisions of the FBC that Brown has violated. In fact, there are no specific provisions of the FBC alleged anywhere in the Association’s Amended Complaint. As such, the Association fails to allege Brown’s professional services violated any provision of the FBC and Brown cannot be held liable under Section 553.84 as a design professional. Accordingly, Brown respectfully requests that this Court dismiss Count XXVIII of the Amended Complaint against Brown with prejudice because the Amended Complaint fails to properly state a cause of action for violation of the Florida Building Code. Il. Count XXIX alleging Professional Negligence should be dismissed because Brown was not the proximate cause of any alleged damages and because Plaintiff fails to allege the necessary elements. 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). Here, the Amended Complaint fails to allege any ultimate facts that demonstrate a breach by Brown, or a causal connection between any breach by Brown and the alleged damages. The Amended Complaint fails to allege any wrongdoing falling within Brown’s scope of services as alleged within the Amended Complaint, as all the alleged defects are construction, installation, and/or lack of maintenance defects. See Compl. {J 285, 63 & 64. There are no alleged defects that are based on faulty or improper design. There is nothing in the Amended Complaint to establish that Brown caused any of the alleged damages, or that Brown breached any duty within Brown’s scope of services. Thus, the essential elements for a professional negligence against Brown have not been properly plead or established. Accordingly, Brown respectfully requests that this Court dismiss Count XXIX of the Amended Complaint against Brown because the allegations are mere mechanical recitations of the elements of Professional Negligence, the allegations are conclusory as to Brown engaging in wrongdoing with no allegations as to Brown’s acts, errors or omissions, and all the alleged defects in the Amended Complaint are outside Brown’s scope of services. Wil. The Amended Complaint should be dismissed for improperly comingling separate and distinct factual allegations and claims. The comingling of separate claims warrants dismissal of the Amended Complaint. Aspsoft, Inc. v. WebClay, 983 So.2d 761, 768 (Fla. Sth DCA 2008). Florida Rule of Civil Procedure 1.110(f) provides as follows: Separate Statements. All averments of claim or defense shall be made in consecutively numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances, and a paragraph may be referred to by number in all subsequent pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense when a separation facilitates the clear presentation of the matter set forth. (See Fla. R. Civ. Pro. 1.110() In K.R. Exch. Servs. v. Fuerst, Humphrey, Ittleman, PL, the Third District Court of Appeals affirmed dismissal, specifically because of the counts “contain[ing] allegations and legal conclusions that improperly refer to [multiple defendants without] differentiat[ing] among the various defendants’ actions and statements.” K.R. Exch Servs. v. Fuerst, Humphrey, Ittleman, PL. 48 So, 3d 889, 893 (Fla. 3d DCA 2010). This practice of commingling factual allegations and legal conclusions as to other defendants in a count that only applies to one of the defendants is not permissible in Florida. In the instant matter, The Amended Complaint re-alleges, without differentiation, Amended Complaint paragraphs 1- 67 into every count of the Amended Complaint regardless of 8 which entity is the focus of that Count. Amend. Compl. ff 68, 74, 81, 90, 96, 103, 112, 118, 125, 134, 143, 149, 158, 164, 173, 179, 188, 194, 203, 209, 218, 224, 233, 239, 248, 254, 264, 270 & 280. However, each of the Defendants have separate and distinct, contractual obligations, duties, scopes of work or services, liabilities, and standards of care. Still, the Association treats all the Defendants the same and comingles the vague descriptions of each and every alleged defect into every count with no meaningful connection or distinction between the actions, omissions, or scopes of work or services of each Defendant. /d. Not only is such lack of specificity a violation of Rule 1.110(f) of the Florida Rules of Civil Procedure, and other previously noted Florida Law, but this failure to differentiate unjustly prevents the Defendants from providing an intelligent answer or formulating a defense. Inevitably, the Association’s lack of differentiation will, and has already, caused unnecessary confusion and reduced judicial efficiency, as this Motion to Dismiss would not have been filed, if the allegations and counts of the Amended Complaint had been specifically tailored to each Defendant within each count. WHEREFORE, the Association’s entire Amended Complaint should be dismissed for failure to satisfy Florida’s pleading requirements pursuant to Fla. Civ. P. R. 1.110(f). Further, the entire Amended Complaint should be dismissed, as it applies to Brown, because the extremely vague allegations re-alleged in all counts, including in counts XXVIII and XXIX against Brown, fail to set forth the ultimate facts that connect the defects to Brown and its scope of services with the necessary clarity to allow Brown to provide an intelligent answer or formulate its defense to either count. IV. COUNTS XXVIII and XXIX must be dismissed as they contain internally inconsistent allegations, and do not plead a short and plain statement of ultimate facts showing that the Association is entitled to relief. The Association not only comingles Amended Complaint paragraphs 1-67 into every count of the Amended Complaint regardless of defendant, but the Association has also incorporated 9 internally inconsistent allegations into Counts XXVIII and XXIX causing those counts to be insufficiently pled. The Florida Supreme Court has held that: where there are contradictory, repugnant, or inconsistent statements in a pleading, such statements would have the effect of neutralizing each other, and that such pleading would be held bad on demurrer. See Hoopes Bros. v. Crane, 56 Fla. 395,47 South. 992, and State v. Seaboard Air Line Ry., 56 Fla. 670, 47 South. 986. American Fire Ins. Co. v. King Lumber & Mfg. Co., 74 Fla. 130, 150-51 (Fla. 1917), and Don M: ar, Inc. v. Gillis, 483 So.2d 870, n.1 (Fla. 5° DCA 1986)( “.. . Hoopes v. Crane, 56 Fla. 395, 47 So. 992 (1908), hold merely that contradictory allegations within a single count neutralize each other and render the count insufficient on its face.”); See also Peacock v. General Motors Acceptance Corp., 432 So.2d 142 (Fla. 18‘ DCA 1983). Additionally, Florida Civil Procedure Rule 1.110 requires: (b) Claims for Relief. A pleading which sets forth a claim for relief, ..., must state a cause of action and shall contain . . . (2) a short and plain statement of the ultimate facts showing that the pleader is entitled to relief,.... Fla. Civ. P. R. 1.110 (b)(2). In Count XXVIII, the Association alleges that Brown had a duty to design, develop, and construct all the common areas and townhomes, and that Brown actively participated in design, construction, and supervised how the townhomes and common areas were designed, and constructed. Compl. {| 253. However, Count XXVIII also alleges that Brown was responsible for “the design of the Townhomes developed by Royal Oak”. Compl. §] 35 & 251. Therefore, the allegations of Count XXVIII assert internally inconsistent facts regarding Brown’s scope of services during the development of the Community. The same internal inconsistency occurs within Count XXIX. Compl. {J 261 & 265. 10 Further, in Count XXIX it is alleged that Brown breached the duty to design the Townhomes, by “. . . negligently providing . . . supervision, oversight, and/or inspection services in a professional work like manner . . .” Amend. Compl. {{ 37, 272 & 284. Given a comparative reading of Amend. Compl. {J 37, 272 & 284, there is no consistency within the Amended Complaint, or within Counts XXVIII and XXIX, as to Brown’s scope of services or any breach thereof. Additionally, the Association fails to state Brown’s alleged wrongdoing. Instead of attributing specific defects to Brown from those listed in Amended Complaint Paragraphs 1-64 with accompanying ultimate facts to show the Association is entitled to relief against Brown, the Association instead alleges that Brown is at fault for all defects allegedly attributable to Royal Oak, ROH Subcontractors and ROH Design Professionals, even though Brown was only responsible for the design of the Townhomes. Amend. Compl. {J 51, 274, 63, 64, & 285. Therefore, the Association’s allegations of wrongdoing by Brown are so vague as to be unanswerable. Moreover, those few averments the Association makes regarding what Brown was allegedly responsible for at the Community are so confused by ever changing and internally inconsistent assertions that Brown cannot intelligently respond. Amend. Compl. {{ 37, 270, 272, 274, 280, 282 & 284. WHEREFORE, the Association’s entire Amended Complaint, especially Counts XXVIII and XXIX as to Brown, must be dismissed for failure to sufficiently plead the causes of action on their face by alleging or incorporating internally inconsistent allegations in both counts as well as the Amended Complaint at large. 11 MOTIONS TO STRIKE 1 Motion to Strike Claim for Attorneys’ Fees “Tt is well-settled that attorneys’ fees can derive only from either a statutory basis or an agreement between the parties.” Trytek v. Gale Industries, Inc., 3 So.3d 1194, 1198 (Fla. 2009) (citing State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830, 832 (Fla. 1993)). In the instant matter, the Amended Complaint alleges that: As a result of the defects identified in paragraphs 51-61, the Association and its member have been damaged and injured. The damages include vii. All costs incurred to prosecute this lawsuit; and ix. Pre-judgment interest. Amend. Compl. §/ 64, WHEREFORE of counts XXVIII & XXIX. In so far as the above quoted language is a claim for attorney’s fees, the Association fails to state any statutory or contractual basis for entitlement to attorneys’ fees. Accordingly, the Association’s claim for attorneys’ fees against Brown should be stricken. Il. Motion to Strike Claim for Prejudgment Interest 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. a 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. 1" DCA 1982)). 12 In the instant matter, the Amended Complaint contains demands for prejudgment interest. Compl. §{[ 64, WHEREFORE of counts XXVIII & XXIX. 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 Association fails to allege any legal basis for entitlement to prejudgment interest. Accordingly, Association’s claim 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 21st day of May, 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 bealderon@milbermakris.com dhili@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 13 201 East Pine Street — Suite 600 Orlando, FL 32801 pioseph@balijanik.com esmall@balljanik.com jwidelitz@balljanik.com nyargo@ballianik.on 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 14 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 mumilligan@ 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. 15 Filing # 125919197 E-Filed 04/30/2021 10:33:18 AM 1° Hi A & PA A \. THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA VILLAS AT EMERALD LAKE HOMEOWNERS Case No.: 2020-CA-002942 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; Defendants. ROYAL OAKS HOME, LLC., Cross-Claimant, 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., WOLF'S IRRIGATION & LANDSCAPING, INC., a Florida corporation; BROWN+COMPANY ARCHITECTURE, INC., a Florida corporation; Cross-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. PLAINTIFF’S NOTICE OF FILING AMENDED COMPLAINT Plaintiff, VILLAS AT EMERALD LAKE HOMEOWNERS ASSOCIATION, INC., by and through its undersigned counsel, hereby gives notice of filing its Amended Complaint pursuant to the operative Case Management Order (docket #223). DATED: April 30, 2021. BALL JANIK LLP By: _/s/ Allana D.E. Smith, Esq. Phillip E. Joseph, FL Bar No. 1000368 Evan J. Small, FL Bar No. 57306 Nicholas B. Vargo, FL Bar No. 121269 Allana D.E. Smith, FL Bar No. 1025757 201 E Pine Street, Suite 600 Orlando, FL 32801 Telephone: (407) 455-5664 Facsimile: (407) 902-2105 pjoseph@balljanik.com esmal!l@balljanik.com vargo@balljanik.com smith@balljanik.com ypalmer@balljanik.com cbetancourt@balljanik.com nwise@balljanik.com dmiksell@balljanik.cor orlandodocket@balljanik.com Counsel for Plaintiff Villas at Emerald Lake Homeowners Association, Inc. CERTIFICATE OF SERVICE I certify that a true copy of the foregoing has been filed via the Florida Courts E-Filing Portal on this 30" day of April, 2021. /s/ Allana D.E. Smith, Esq. Allana D.E. Smith, Esq. SERVICE LIST LANNIE D. HOUGH JR. THAMIR A.R. KADDOURI, JR. ROBIN H. LEAVENGOOD PENELOPE T. ROWLETT JAMES MICHAEL WALLS BETH ANN TOBEY BRIAN C. PORTER Law Office of Thamir A.R. Kaddouri, Jr. P.A Carlton Fields, P.A. 3220 West Cypress Street 4221 W. Boy Scout Boulevard Tampa, FL 33607 Tampa, FL 33607-5780 P. 813-879-5752 P. 813-223-7000 F. 813-879-5707 F, 813-229-4133 Thamir.kaddouri@tampalaw.org lhough@carltonfields.com ervice@tampalaw.org nbonilla@carltonfields.com beth.tobe tampalaw.or: vwilliams@carltonfields.com rleavengood@carltonfields.com Counsel for Defendant, Imperial Building brosa@carletonfields.com Corporation bporter@carltonfields.com jcostello@carltonfields.com mwalls@carltonfields.com Counsel for Defendant, Royal Oak Homes, LLC PAUL SIDNEY ELLIOTT PETER J. KAPSALES P.O. Box 274204 MARGARET M. EFTA Tampa, FL 33688-4204 Milne Law Group, P.A. 301 E. Pine Street, Suite 525 P. 813-265-1314 Orlando, FL 32801 F. 813-961-1103 P. 321-558-7700 pse@psejd.com pkapsales@milnelawgroup.com mefta@milnelawgroup.com Counsel for Defendant, Hugh MacDonald eservice@milnelawgroup.com Construction, Inc. (HMC) Counsel for Defendant, Weathermaster Building Products, Inc. DENISE M. ANDERSON ASHLEY M. MATTINGLY Butler Weihmuller Katz Craig LLP 400 N. Ashley Drive, Suite 2300 Tampa, FL 33602 P. 813-281-1900 danderson@butler.legal matting! butler.legal jjacobs butler.legal jorge@butler.legal Co-Counsel for Defendant, Hugh MacDonald Construction, Inc. DENISE M. ANDERSON TIMOTHY C. FORD KATE F. GASET ANDREW E. HOLWAY Butler Weihmuller Katz Craig, LLP Hill Ward Henderson 101 E. Kennedy Blvd., Suite 3700 400 N. Ashley Drive, Suite 2300 Tampa, FL 33602 Tampa, FL 33602 P. 813-221-3900 danderson@butler.legal F. 813-221-2900 kgaset@pbutler.legal Tim.ford@hwhlaw.com dwhite@pbutler.legal Andrew. holway@hwhlaw.com krieck@butler.legal Tracy.coale@hwhlaw.com jorge@butler.legal Kathy.wernsing@hwhlaw.com Derrick.calandra@hwhlaw.com Counsel for Defendant, Don King’s Concrete, Counsel for Defendant, Weintraub Ine. Inspections & Forensics, Inc. n/k/a Weintraub Engineering and Inspections, Inc. JAYNE ANN PITTMAN BRUCE R. CALDERON NATALIE C. FISCHER D. BRYAN HILL Conroy Simberg AUDRA R. CREECH Milber Makris Plousadis & Seiden, LLP Two South Orange Avenue, Suite 300 1900 NW Corporate Blvd. Orlando, FL 32801 East Tower, Suite 440 P. (407) 649-9797 Boca Raton, FL 33431 F. (407) 649-1968 P. (561) 994-7310 eserviceorl@conroysimberg.com F. (561) 994-7313 jpittman@conroysimberg.com bealderon@milbermakris.com mmaitland@conroysimberg.com dhill milbermakris.com creech@milbermakris.com nfischer@conroysimberg.com kmedowell@milbermakris.com Counsel for Defendant, Advanced Wrapping Counsel for Defendant, Brown + Company and Concrete Solutions of Central Florida, Architecture, Inc. Inc. ERIC J. NETCHER S. SCOTT ROSS Walker, Revels, Greninger & Netcher PLLC Groelle & Salmon, P.A. 189 S. Orange Ave., Suite 1830 1715 N. Westshore Blvd., Suite 320 Tampa, FL 33607 Orlando, FL 32801 P. (813) 849-7200 P. (407) 789-1830 gstcourtdocs@gspalaw.com netcher@wrgn-law.com ross@gspalaw.com hpayesh@wrgn-law.com ebanks@gspalaw.com mcoleman@gspalaw.com Counsel for Third-Party Defendant, All Glass Counsel for Third-Party Defendant, Helberg Installation Corp. Enterprises, LLC VICKI LAMBERT ANDREW T. MARSHALL ALEC MASSON Hamilton, Price & Marshall, P.A. Luks, Santaniello, Petrillo & Cohen 2400 Manatee Ave. W. Bradenton, FL 34205 201 S. Orange Avenue, Suite 400 P. 941-748-0550 Orlando, FL 32801 F. 941-745-2079 P. 407-540-9170 andrew@hamiltonpricelaw.com F. 407-540-9171 nancy@hamiltonpricelaw.com Luksorl-pleadings@Is-law.com kelsey@hamiltonpricelaw.com imason{ insurancedefense.net jpestonit@insurancedefense.net Counsel for T&M Construction of Sanford, Ine. Counsel for Third-Party Defendant, Casey Hawkins Glass, Inc. PHILLIP S. HOWELL KYLE MCNEAL Galloway, Johnson, Tompkins, Burr & Smith, P.L.C. 400 N. Ashley Dr., Suite 1000 Tampa, FL 33602 P. 813-977-1200 F. 813-977-1288 tampaservbice@gallowaylawfirm.com phowell@gallowaylawfirm.com kmcneal@gallowaylawfirm.com Co-Counsel for Third-Party Defendant, Casey Hawkins Glass, Inc. BRUCE R. CALDERON COLE J. COPERTINO, ESQUIRE D. BRYAN HILL Wright, Fulford, Moorhead & Brown, P.A. AUDRA R. CREECH 505 Maitland Avenue, Suite 1000 Altamonte Springs, Florida 32701 Milber Makris Plousadis & Seiden, LLP P. (407) 425-0234 1900 NW Corporate Blvd., East Tower, Suite F. (407) 425-0260 440 copertino@wfmblaw.com cbraungart@wfmblaw.com Boca Raton, FL 33431 lwilliams@wfmblaw.com P. 561-994-7310 F. 561-994-7313 Counsel for Well Hung Windows & Doors bealderon@milbermakris.com dhill milbermakris.com creech@milbermakris.com Counsel for Defendant, Brown + Company Architecture, Inc. JOSEPH L. ZOLLNER Law Office of Amy L. Warpinski PO Box 7217 London, KY 40742 P. 904-346-5422 F. 866-270-1372 FloridaCDLegalMail@LibertyMutual.com joseph.zollner@libertymutual.com Counsel for Lios Concrete Corp THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA VILLAS AT EMERALD LAKE HOMEOWNERS | Case No.: 2020-CA-002942 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; EXPERT PAINTING & PRESSURE WASHING, INC., a Florida corporation; Defendants. ROYAL OAKS HOME, LLC., Cross-Claimant, Vv. ADVANCED WRAPPING AND CONCRETE SOLUTIONS OF CENTRAL FLORIDA, INC., a Florida corporation; DON KING'S CONCRETE, INC., a Florida corporation; HUGH MACDONALD Page 1 of 69 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; Cross-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. AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL Plaintiff VILLAS AT EMERALD LAKE HOMEOWNERS ASSOCIATION, INC. (the “Association’”), by and through undersigned counsel, hereby sues Defendants ROYAL OAK HOMES, LLC (“ROYAL OAK”); ADVANCED WRAPPING AND CONCRETE SOLUTIONS Page 2 of 69 OF CENTRAL FLORIDA, INC. (“ADVANCED”); DON KING’S CONCRETE, INC. (“DON KING”); HUGH MACDONALD CONSTRUCTION, INC. (“HUGH MACDONALD”); IMPERIAL BUILDING CORPORATION (“IMPERIAL”); PREMIER PLASTERING OF CENTRAL FLORIDA, INC. N/K/A TGK STUCCO, INC. (“PREMIER”); WEATHERMASTER BUILDING PRODUCTS, INC. (“WEATHERMASTER”); WEINTRAUB INSPECTIONS & FORENSICS, INC. N/K/A WEINTRAUB ENGINEERING AND INSPECTIONS, INC. (“WEINTRAUB”); THE DIMILLO GROUP, LLC (“DIMILLO”); WOLF’S IRRIGATION & LANDSCAPING, INC. (“WOLF”); SUMMERPARK HOMES, INC. (“SUMMERPARK”); BROWN+COMPANY ARCHITECTURE, INC. (“BROWN”); EXPERT PAINTING & PRESSURE WASHING, INC. (“EXPERT PAINTING”) and seeks trial by jury. In support thereof, the Association alleges as follows: NATURE OF THE CASE 1 This is an action for damages arising from the negligent and defective development, design, construction, and sale of the townhomes and common areas at Villas at Emerald Lake in Kissimmee, Osceola County, Florida (the “Community” or the “Townhomes”), caused by the Defendants. JURISDICTION AND VENUE 2 This is an action for monetary damages in excess of $30,000.00, exclusive of interest, costs, and attorney’s fees, and th