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Filing # 124775854 E-Filed 04/12/2021 05:43:38 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
CASE NO: 2020-CA-002942
VILLAS AT EMERALD LAKE
HOMEOWNERS ASSOCIATION, INC.,
Plaintiff,
vs.
ROYAL OAK HOMES, LLC, et al.,
Defendants.
ROYAL OAK HOMES, LLC,
Cross-Claimant,
vs.
ADVANCED WRAPPING AND CONCRETE
SOLUTIONS OF CENTRAL FLORIDA, INC.,
et al.,
Cross-Defendants.
/
WEATHERMASTER BUILDING PRODUCTS,
INC,
Third-Party Plaintiff,
vs.
ALL GLASS INSTALLATION CORP.,; et al.,
Third-Party Defendants.
/
Third-Party Defendant All Glass Installation Corp.’s Motion to Dismiss
Weathermaster Building Products, Inc.'s Third- Party Complaint
Third-Party Defendant All Glass Installation Corp. (“All Glass”), by and through
undersigned counsel and pursuant to Florida Rule of Civil Procedure 1.140, files thisMotion to Dismiss Weathermaster Buiding Products, Inc.’s (“Weathermaster”) Third-
Party Complaint. In support, All Glass states as follows:
This matter arises out of the “design and construction of individual residential
townhome buildings and their common elements located in the Villas at Emerald Lake
Townhome Community located in Kissimmee, Osceola County, Florida (the “Project”).”
(Third-Party Complaint at { 12). Royal Oak Homes, LLC served as the developer and
general contractor for 77 of the Project’s buildings. Weathermaster acted as the
subcontractor to perform window and sliding glass door installation. Weathermaster
alleges it sub-subcontracted with the multiple entities including All Glass. Against
Weathermaster, Plaintiff Villas at Emerald Lake Homeowners Association, Inc. asserts
two counts for relief — violation of the building code and negligence. Royal Oaks also filed
acrossclaim against Weathermaster. Counts 16 — 18 of Royal Oaks’ Crossclaim are against
Weathermaster. Royal Oaks asserts claims of breach of contract, negligence, and building
code violations.
In turn, Weathermaster filed its Third-Party Complaint asserting 32 causes of
action against its subcontractors — 4 of which are against All Glass. Count 1 is a common
law indemnity claim. Count 2 is a claim for breach of contract. Count 3 is a building code
violation claim. Count 4 is a negligence claim. Weathermaster’s Third-Party Complaint
fails to state a cause of action against All Glass. Counts 1 - 4 of Weathermaster’s Third-
Party Complaint should be dismissed.
Memorandum of Law
I Weathermaster fails to allege sufficient ultimate facts to state a claim for
relief.
To overcome a motion to dismiss, a plaintiff must plead ultimate facts that
demonstrate entitlement to relief. Horowitz v. Laske, 855 So. 2d 169, 172-73 (Fla. 5th DCA2003). Florida is a fact-pleading jurisdiction. Deloitte & Touche v. Gencor Indus., Inc., 929
So. 2d 678, 681 (Fla. 5th DCA 2006) (“As we wearily continue to point out, Florida is a
fact-pleading jurisdiction, not a notice-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.” Cont’l Baking Co. v.
Vincent, 634 So. 2d 242 (Fla. 5th DCA 1994). “Furthermore, at the outset of a suit, litigants
must state their pleadings with sufficient particularity for a defense to be prepared.”
Horowitz, 855 So. 2d at 173. Moreover, dismissal is appropriate when a complaint merely
contains “legal conclusions” unsupported by allegations of ultimate fact. Short v. Lakeside
Cmty. Church, 700 So. 2d 772, 773 (Fla. 2d DCA 1997). “Craftsmanship in pleadings frame
the issues between the parties so they can ‘know what they've got to meet and get ready
to meet it.” Nguyen v. Roth Realty, Inc., 550 So. 2d 490, 491 (Fla. 5th DCA 1989). Federal
courts have described Florida’s pleading standard as a “heightened fact-pleading
standard.” See Malhotra v. Aggarwal, 2019 WL 3425161, at *1 (S.D. Fla. July 30, 2019).
Weathermaster fails to satisfy these standards. This problem permeates each claim
asserted against All Glass. The Third-Party Complaint does not contain sufficient
ultimate facts to support each element of its purported claims. Rather, it contains
conclusory allegations. Weathermaster includes the same generic allegations as to each
subcontractor but fails to actually identify what All Glass actually did or did not do that
supports the elements of common law indemnity, breach of contract, violation of building
code, or negligence.
Because Weathermaster’s Third-Party Complaint fails to provide basic facts with
respect to the claims against All Glass, it fails to state a cause of action. Counts 1 through4 should be dismissed. The pleading deficiencies bleed into the merits of the claims being
asserted. Each of the claims is subject to dismissal for the additional reasons that follow.
II. Count 1 fails to state a claim for common law indemnity.
Count 1 is a generic claim for common law indemnity. Without sufficient factual
allegations, Weathermaster alleges the following legal conclusions: based on the
subcontract, it had a special relationship with All Glass; it is wholly without fault as to
the defects alleged by the Association and Royal Oak; and that in relation to its scope of
work, Weathermaster’s liability is solely vicarious, constructive, technical, or derivative,
and All Glass is solely at fault. (Third-Party Complaint at {1 26 — 28). Not only is this
claim factually deficient, it is legally deficient.
There is a three-part test to recover under common law indemnity. Dade Cnty. Sch.
Bd. v. Radio Station WQBA, 731 So. 2d 638, 642 (Fla. 1999). First, the party seeking
indemnity must be without fault and its liability must be vicarious. Second,
indemnification can only come from a party who was at fault. Third, there must be a
“special relationship” between the parties. Id.
The Association has sued Weathermaster alleging negligence and active fault. If
the Association or Royal Oak ultimately prevails against Weathermaster, they would
have demonstrated that Weathermaster had active fault. Therefore, Weathermaster
would be “at fault” and unable to establish the first element of common law
indemnification. Mendez-Garcia v. Galaxie Corp., 2011 WL 5358658 at “5 (M.D. Fla. Nov. 3,
2011) (explaining that if a jury found for the plaintiffs on the negligence claim, defendant
would necessarily be at fault, precluding a common law indemnification claim); Lee v.
Spicola, 1988 WL 152013 at *3 (M.D. Fla. Dec. 9, 1988) (“Thus, if Dioddate is found to be
liable to Plaintiffs, he will have been found to be negligent and therefore he will not be
entitled to be indemnified.”); Walter Taft Bradshaw & Associates, P.A. v. Bedsole, 374 So. 24644, 646 (Fla. 4th DCA 1979) (affirming dismissal of common law indemnification claim
with prejudice); Zeier Crane Rental, Inc. v. Double Aindus Inc., 16 So. 3d 907, 911-12 (Fla.
4th DCA 2009); Nucci v. Buchanan Ingersoll & Rooney PC, 2016 WL 5843429 (M.D. Fla. Oct.
4, 2016).
Also instructive is Paul N. Howard Co. v. Affholder, Inc., 701 So. 2d 402 (Fla. 5th DCA
1997). In Affholder, a general contractor sued a subcontractor for common law
indemnification. The Fifth DCA held that a contractor cannot seek indemnification
against a subcontractor for its own alleged negligence because the contractor cannot be
held vicariously liable for the acts of its subcontractor. “The relationship between [the
general contractor] and [the subcontractor] is that of general contractor subcontracting
with subcontractor/independent contractor, and nothing more.” Id. at 404. Thus, the
general contractor “cannot be held vicariously, constructively, derivatively, or technically
liable for Affholder’s alleged negligence.” Id.
Weathermaster’s claim for common law indemnity is factually and legally without
merit. Count 1 should be dismissed.
Il. Because Weathermaster has not and cannot state a claim for
indemnification, the remaining claims (breach of contract, building code
violation, and negligence) must also be dismissed.
The legal inadequacy of the common law indemnity claim has trickle down effects
on the breach of contract claim, building code violation claim, and the negligence claim.
Florida Rule of Civil Procedure 1.180(a) provides as follows:
At any time after commencement of the action a defendant may have a
summons and complaint served on a person not a party to the action who
is or may be liable to the defendant for all or part of the plaintiff’s claim
against the defendant and may also assert any other claim that arises out of the
transaction or occurrence that is the subject matter of the plaintiff's claim.
(emphasis added)The emphasized language of the rule has been interpreted to mean that “a third-party
plaintiff must allege a claim for indemnification, subrogation, or contribution before it
can assert any other claim against a third-party defendant.” Florida Peninsula Ins. Co. v.
Ken Mullen Plumbing, Inc., 171 So. 3d 194, 198 (Fla. 5th DCA 2015) (citing Rupp v. Philpot,
619 So. 2d 1047, 1048 (Fla. 5th DCA 1993)).
In Rupp, a defendant facing lien and breach of contract claims filed a third-party
complaint asserting breach of contract, breach of express warranty, and negligence. 619
So. 2d at 1047-48. The third-party defendant sought summary judgment because the
third-party plaintiff was not seeking indemnification, subrogation, or contribution. Id.
The summary judgment was granted and the Fifth DCA affirmed. The court concluded
that the “use of the word ‘and’ rather than ‘or’” in rule 1.180(a) “was meant to allow a
claim in addition to but not in absence of a claim for indemnification, subrogation, or
contribution.” Id. at 1048; see also Leggiere v. Merrill Lynch Realty/Florida, Inc., 544 So. 2d
240 (Fla. 2d DCA 1989) (holding that a third-party plaintiff must first allege an
indemnification claim before it “may assert any other claim against the third party
defendant ....”).
Because Weathermaster has not stated a claim for common law indemnity, the
breach of contract, building code violation, and negligence claims would also have to be
dismissed. Without a valid indemnification claim, Weathermaster cannot “assert any
other claim against a third-party defendant.” Florida Peninsula Ins. Co. v. Ken Mullen
Plumbing, Inc., 171 So. 3d at 198. Counts 2, 3, and 4 should be dismissed.
In addition to this deficiency, Counts 2, 3, and 4 are subject to dismissal for
additional reasons addressed below.
IV. Count 2 fails to state a claim for breach of contract.Count 2 is a claim for breach of contract. Weathermaster attaches a contract as
Exhibit C dated October 2, 2013. Weathermaster asserts that All Glass failed to perform
its scope of work in a workmanlike manner, in accordance with any and all contract
drawings and specifications, and in compliance with industry standards, applicable
building codes, or other governing regulations. (Third-Party Complaint at {1 31 — 32). As
discussed above, this claim is factually deficient. But it is also legally deficient based on
the contract.
The contract attached to the Third-Party Complaint is entitled “Independent
Contractor Agreement.” It addresses only six issues: (1) All Glass is operating in Florida
under its stated name; (2) All Glass is an independent contractor and not an employee of
Weathermaster; (3) All Glass has workers’ compensation insurance; (4) All Glass has
general liability insurance; (5) any lapse in coverage will result in withheld payments or
cease work orders; and (6) All Glass will indemnify Weathermaster for certain claims
made by All Glass employees or subcontractors. The contract does not identify the
project, All Glass’s scope of work, any related contract drawings or specifications, or
industry standards, building codes or other governing regulations to be followed.
When the language of a contract is unambiguous, there is no occasion for judicial
construction. The clear language controls. Dune Iv. Palms N. Owners Ass'n, 605 So. 2d 903,
905 (Fla. 1st DCA 1992). Courts cannot change the duties and obligations negotiated.
Hospital Corp. of Am. V. Florida Med. Ctr., 710 So. 2d 573, 575 (Fla. 4th DCA 1988).
Weathermaster fails to identify any provision of the Indpendent Contractor Agreement
that All Glass breached. Count 2 should be dismissed.
V. Count 3 fails to state a claim for violation of Florida Building Code.
Count 3 against All Glass is a generic claim for statutory cause of action pursuant
to Fla. Stat. § 553.84. The generic nature of the claim requires dismissal as discussedabove. Weathermaster does not offer any description or identify any sections of the
applicable building code that All Glass violated. That is insufficient. See Gazzara v. Pulte
Home Corp., 207 F. Supp. 3d 1306, 1310 (M.D. Fla. 2016) (mere conclusory allegations of
building code violations without facts or identification of the building code provision
fails to state a claim under § 553.84). Weathermaster has failed to state a claim for building
code violation. Count 3 should be dismissed.
VI. Count 4 fails to state a claim for negligence.
Count 4 purports to state a negligence claim. As discussed above, it is conclusory
and fails to include sufficient ultimate facts. That is, it fails to plausibly allege the
hornbook negligence requirements of duty, breach, causation, and damages.
Moreover, “in order to bring a valid tort claim, a party [] must demonstrate that
all of the required elements for the cause of action are satisfied, including that the tort is
independent of any breach of contract claim.” Tiarra Condo. Ass’n Inc. v. Marsh &
McLennan Companies, Inc., 110 So. 3d 399, 408 (Fla. 2013) (Pariente, J., concurring) (citing
Lewis v. Guthartz, 428 So. 2d 222, 224 (Fla. 1982)). An independent tort claim requires facts
separate and distinct from the breach of contract. HTP, Ltd. V. Lineas Aeareas
Costarricenses, S.A., 685 So. 2d 1238, 1239 (Fla. 1996).
In comparing the allegations of Count 2 (breach of contract) and Count 3
(negligence), it is clear that Weathermaster has not alleged a tort that is independent of
an alleged breach of contract. Each count, in conclusory fashion, alleges that All Glass’s
work was not performed in a workmanlike manner, in accordance with any and all
contract drawings, and specifications, and in compliance with industry standards.
Compare {32 and 42. And the factual basis for each claim is the same. In addition to
failing to allege sufficient factual allegations, Count 4 should be dismissed because it does
not allege an independent tort.Conclusion
Weathermaster’s Third-Party Complaint suffers from numerous deficiencies
requiring dismissal. It fails to allege sufficient ultimate facts and further fails to satisfy
the requisite elements for common law indemnification, breach of contract, building code
violation, and negligence. All Glass respectfully requests that this Court grant this Motion
to Dismiss and dismiss Counts 1 — 4 of Weathermaster’s Third-Party Complaint.
Certificate of Service
I HEREBY CERTIFY that on April 12, 2021, the foregoing was electronically filed
through the Florida Courts E-Filing Portal which will serve a copy to all parties on the
Service List.
/s/ Eric J. Netcher
ERIC J. NETCHER
Florida Bar No. 106530
Walker, Revels, Greninger & Netcher PLLC
189 S. Orange Ave., Suite 1830
Orlando, Florida 32801
407-789-1830
enetcher@wrgn-law.com
hpaymayesh@wrgn-law.com,
Counsel for Third-Party Defendant All Glass
Installation Corp.
SERVICE LIST
COUNSEL FOR VILLAS AT EMERALD
LAKE HOMEOWNERS ASSOCIATION,
INC.
Phillip Joseph, Esq.
Evan Small, Esq.
Jeffrey A. Widelitz, Esq.
Nicholas B. Vargo, Esq.
Ball Janik, LLP
201 E. Pine Street, Suite 600
Orlando, FL 32801
T: 407-455-5664
F: 407-902-2105
pjoseph@balljanik.com
COUNSEL FOR ROYAL OAK HOMES,
LLC
Lannie D. Hough Jr., Esq.
Robin Leavengood, Esq.
Carlton Fields
4221 W. Boy Scout Blvd, Suite 1000
Tampa, FL 33607
though@carltonfields.com
nbonilla@carltonfields.com
leavengood@carltonfields.com
vwilliams@carltonfields.comesmali@balljanik.com
jwidelitz@balljanik.com
nvargo@balljanik.com
ypalmer@balljanik.com
orlandodocket@balljanik.com
mwise@balljanik.com
COUNSEL FOR WEATHERMASTER
BUILDING PRODUCTS, INC.
Michael E. Milne, Esq.
Peter J. Kapsales, Esq.
Milne Law Group, P.A.
301 E. Pine Street, Suite 525
Orlando, FL 32801
T: 321-558-7700
F: 407-641-2111
mumilne@milnelawgroup.com
spalazzolo@milnelawgroup.com
eservice@miinelawgroup.com
pkapsales@milnelawgroup.com
mefta@milnelawgroup.com
COUNSEL FOR ALL GLASS
INSTALLATION CORP.
Eric J. Netcher, Esq
Walker, Revels, Greninger & Netcher,
PLLC
189 S. Orange Avenue, Suite 1830
Orlando, FL 32801
T: 407-789-1830
F: 321-251-2980
hpaymayesh@wrgn-law.com
COUNSEL FOR ADVANCED
WRAPPING AND CONCRETE
SOLUTIONS OF CENTRAL FLORIDA,
INC.
Jayne Ann Pittman, Esq.
Conroy Simberg
2 South Orange Avenue, Suite 300
Orlando, FL 32801
T: 407-649-9797
F: 407-649-1968
eserviceorl|@conroysimberg.com
jpittman@conroysimberg.com
mmaitland@conroysimberg.com
COUNSEL FOR WEINTRAUB
INSPECTIONS & FORENSIC, INC.
Timothy C. Ford, Esq.
Andrew E. Holway, Esq.
Hill Ward Henderson
101 E. Kennedy Blvd., Suite 3700
Tampa, FL 33602
T: 813-221-3900
F: 813-221-2900
tim.ford@hwhlaw.com
Andrew holway@hwhlaw.com
Tracy.coale@hwhlaw.com
Kathy.wernsing@hwhlaw.com
Derrick.calandra@hwhlaw.com
COUNSEL FOR HUGH MACDONALD
CONSTRUCTION, INC.
Paul Sidney Elliott, Esq.
P.O. Box 274204
Tampa, FL 33688-4204
pse@psejd.com
COUNSEL FOR IMPERIAL BUILDING
CORPORATION
Thamir A.R. Kaddouri, Jr., Esq.
Penelope T. Rowlett, Esq.
Beth Ann Tobey, Esq.
Law Office of Thamir A.R. Kaddouri, Jr.,
P.A.
3220 West Cypress Street
10Tampa, FL 33607
T: 813-879-5752
F: 813-879-5707
Thamir.Kaddouri@tampalaw.org
Service@Tampalaw.org
Penelope.Rowlett@tampalaw.org
COUNSEL FOR DON KING’S
CONCRETE, INC.
Kate F. Gaset, Esq.
Denise M. Anderson, Esq.
Butler Weihmuller Katz Craig LLP
400 N. Ashley Drive, Suite 2300
Tampa, FL 33602
T: 813-281-1900
danderson@butler.legal
kgaset@butler.legal
munilligan@butler.legal
jlacobs@butler.legal
COUNSEL FOR BROWN + COMPANY
ARCHITECTURE, INC.
Bruce R. Calderon, Esq.
D. Bryan Hill, Esq.
Audra R. Creech, Esq.
Milber Makris Plousadis & Seiden, LLP
1900 NW Corporate Blvd., East Tower,
Suite 440
Boca Raton, FL 33431
T: 561-994-7310
F: 561-994-7313
bealderon@milbermakris.com
dhili@milbermakris.com
acreech@milbermakris.com
11
Preview
Filing # 124775854 E-Filed 04/12/2021 05:43:38 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NO: 2020-CA-002942 VILLAS AT EMERALD LAKE HOMEOWNERS ASSOCIATION, INC., Plaintiff, vs. ROYAL OAK HOMES, LLC, et al., Defendants. ROYAL OAK HOMES, LLC, Cross-Claimant, vs. ADVANCED WRAPPING AND CONCRETE SOLUTIONS OF CENTRAL FLORIDA, INC., et al., Cross-Defendants. / WEATHERMASTER BUILDING PRODUCTS, INC, Third-Party Plaintiff, vs. ALL GLASS INSTALLATION CORP.,; et al., Third-Party Defendants. / Third-Party Defendant All Glass Installation Corp.’s Motion to Dismiss Weathermaster Building Products, Inc.'s Third- Party Complaint Third-Party Defendant All Glass Installation Corp. (“All Glass”), by and through undersigned counsel and pursuant to Florida Rule of Civil Procedure 1.140, files thisMotion to Dismiss Weathermaster Buiding Products, Inc.’s (“Weathermaster”) Third- Party Complaint. In support, All Glass states as follows: This matter arises out of the “design and construction of individual residential townhome buildings and their common elements located in the Villas at Emerald Lake Townhome Community located in Kissimmee, Osceola County, Florida (the “Project”).” (Third-Party Complaint at { 12). Royal Oak Homes, LLC served as the developer and general contractor for 77 of the Project’s buildings. Weathermaster acted as the subcontractor to perform window and sliding glass door installation. Weathermaster alleges it sub-subcontracted with the multiple entities including All Glass. Against Weathermaster, Plaintiff Villas at Emerald Lake Homeowners Association, Inc. asserts two counts for relief — violation of the building code and negligence. Royal Oaks also filed acrossclaim against Weathermaster. Counts 16 — 18 of Royal Oaks’ Crossclaim are against Weathermaster. Royal Oaks asserts claims of breach of contract, negligence, and building code violations. In turn, Weathermaster filed its Third-Party Complaint asserting 32 causes of action against its subcontractors — 4 of which are against All Glass. Count 1 is a common law indemnity claim. Count 2 is a claim for breach of contract. Count 3 is a building code violation claim. Count 4 is a negligence claim. Weathermaster’s Third-Party Complaint fails to state a cause of action against All Glass. Counts 1 - 4 of Weathermaster’s Third- Party Complaint should be dismissed. Memorandum of Law I Weathermaster fails to allege sufficient ultimate facts to state a claim for relief. To overcome a motion to dismiss, a plaintiff must plead ultimate facts that demonstrate entitlement to relief. Horowitz v. Laske, 855 So. 2d 169, 172-73 (Fla. 5th DCA2003). Florida is a fact-pleading jurisdiction. Deloitte & Touche v. Gencor Indus., Inc., 929 So. 2d 678, 681 (Fla. 5th DCA 2006) (“As we wearily continue to point out, Florida is a fact-pleading jurisdiction, not a notice-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.” Cont’l Baking Co. v. Vincent, 634 So. 2d 242 (Fla. 5th DCA 1994). “Furthermore, at the outset of a suit, litigants must state their pleadings with sufficient particularity for a defense to be prepared.” Horowitz, 855 So. 2d at 173. Moreover, dismissal is appropriate when a complaint merely contains “legal conclusions” unsupported by allegations of ultimate fact. Short v. Lakeside Cmty. Church, 700 So. 2d 772, 773 (Fla. 2d DCA 1997). “Craftsmanship in pleadings frame the issues between the parties so they can ‘know what they've got to meet and get ready to meet it.” Nguyen v. Roth Realty, Inc., 550 So. 2d 490, 491 (Fla. 5th DCA 1989). Federal courts have described Florida’s pleading standard as a “heightened fact-pleading standard.” See Malhotra v. Aggarwal, 2019 WL 3425161, at *1 (S.D. Fla. July 30, 2019). Weathermaster fails to satisfy these standards. This problem permeates each claim asserted against All Glass. The Third-Party Complaint does not contain sufficient ultimate facts to support each element of its purported claims. Rather, it contains conclusory allegations. Weathermaster includes the same generic allegations as to each subcontractor but fails to actually identify what All Glass actually did or did not do that supports the elements of common law indemnity, breach of contract, violation of building code, or negligence. Because Weathermaster’s Third-Party Complaint fails to provide basic facts with respect to the claims against All Glass, it fails to state a cause of action. Counts 1 through4 should be dismissed. The pleading deficiencies bleed into the merits of the claims being asserted. Each of the claims is subject to dismissal for the additional reasons that follow. II. Count 1 fails to state a claim for common law indemnity. Count 1 is a generic claim for common law indemnity. Without sufficient factual allegations, Weathermaster alleges the following legal conclusions: based on the subcontract, it had a special relationship with All Glass; it is wholly without fault as to the defects alleged by the Association and Royal Oak; and that in relation to its scope of work, Weathermaster’s liability is solely vicarious, constructive, technical, or derivative, and All Glass is solely at fault. (Third-Party Complaint at {1 26 — 28). Not only is this claim factually deficient, it is legally deficient. There is a three-part test to recover under common law indemnity. Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 642 (Fla. 1999). First, the party seeking indemnity must be without fault and its liability must be vicarious. Second, indemnification can only come from a party who was at fault. Third, there must be a “special relationship” between the parties. Id. The Association has sued Weathermaster alleging negligence and active fault. If the Association or Royal Oak ultimately prevails against Weathermaster, they would have demonstrated that Weathermaster had active fault. Therefore, Weathermaster would be “at fault” and unable to establish the first element of common law indemnification. Mendez-Garcia v. Galaxie Corp., 2011 WL 5358658 at “5 (M.D. Fla. Nov. 3, 2011) (explaining that if a jury found for the plaintiffs on the negligence claim, defendant would necessarily be at fault, precluding a common law indemnification claim); Lee v. Spicola, 1988 WL 152013 at *3 (M.D. Fla. Dec. 9, 1988) (“Thus, if Dioddate is found to be liable to Plaintiffs, he will have been found to be negligent and therefore he will not be entitled to be indemnified.”); Walter Taft Bradshaw & Associates, P.A. v. Bedsole, 374 So. 24644, 646 (Fla. 4th DCA 1979) (affirming dismissal of common law indemnification claim with prejudice); Zeier Crane Rental, Inc. v. Double Aindus Inc., 16 So. 3d 907, 911-12 (Fla. 4th DCA 2009); Nucci v. Buchanan Ingersoll & Rooney PC, 2016 WL 5843429 (M.D. Fla. Oct. 4, 2016). Also instructive is Paul N. Howard Co. v. Affholder, Inc., 701 So. 2d 402 (Fla. 5th DCA 1997). In Affholder, a general contractor sued a subcontractor for common law indemnification. The Fifth DCA held that a contractor cannot seek indemnification against a subcontractor for its own alleged negligence because the contractor cannot be held vicariously liable for the acts of its subcontractor. “The relationship between [the general contractor] and [the subcontractor] is that of general contractor subcontracting with subcontractor/independent contractor, and nothing more.” Id. at 404. Thus, the general contractor “cannot be held vicariously, constructively, derivatively, or technically liable for Affholder’s alleged negligence.” Id. Weathermaster’s claim for common law indemnity is factually and legally without merit. Count 1 should be dismissed. Il. Because Weathermaster has not and cannot state a claim for indemnification, the remaining claims (breach of contract, building code violation, and negligence) must also be dismissed. The legal inadequacy of the common law indemnity claim has trickle down effects on the breach of contract claim, building code violation claim, and the negligence claim. Florida Rule of Civil Procedure 1.180(a) provides as follows: At any time after commencement of the action a defendant may have a summons and complaint served on a person not a party to the action who is or may be liable to the defendant for all or part of the plaintiff’s claim against the defendant and may also assert any other claim that arises out of the transaction or occurrence that is the subject matter of the plaintiff's claim. (emphasis added)The emphasized language of the rule has been interpreted to mean that “a third-party plaintiff must allege a claim for indemnification, subrogation, or contribution before it can assert any other claim against a third-party defendant.” Florida Peninsula Ins. Co. v. Ken Mullen Plumbing, Inc., 171 So. 3d 194, 198 (Fla. 5th DCA 2015) (citing Rupp v. Philpot, 619 So. 2d 1047, 1048 (Fla. 5th DCA 1993)). In Rupp, a defendant facing lien and breach of contract claims filed a third-party complaint asserting breach of contract, breach of express warranty, and negligence. 619 So. 2d at 1047-48. The third-party defendant sought summary judgment because the third-party plaintiff was not seeking indemnification, subrogation, or contribution. Id. The summary judgment was granted and the Fifth DCA affirmed. The court concluded that the “use of the word ‘and’ rather than ‘or’” in rule 1.180(a) “was meant to allow a claim in addition to but not in absence of a claim for indemnification, subrogation, or contribution.” Id. at 1048; see also Leggiere v. Merrill Lynch Realty/Florida, Inc., 544 So. 2d 240 (Fla. 2d DCA 1989) (holding that a third-party plaintiff must first allege an indemnification claim before it “may assert any other claim against the third party defendant ....”). Because Weathermaster has not stated a claim for common law indemnity, the breach of contract, building code violation, and negligence claims would also have to be dismissed. Without a valid indemnification claim, Weathermaster cannot “assert any other claim against a third-party defendant.” Florida Peninsula Ins. Co. v. Ken Mullen Plumbing, Inc., 171 So. 3d at 198. Counts 2, 3, and 4 should be dismissed. In addition to this deficiency, Counts 2, 3, and 4 are subject to dismissal for additional reasons addressed below. IV. Count 2 fails to state a claim for breach of contract.Count 2 is a claim for breach of contract. Weathermaster attaches a contract as Exhibit C dated October 2, 2013. Weathermaster asserts that All Glass failed to perform its scope of work in a workmanlike manner, in accordance with any and all contract drawings and specifications, and in compliance with industry standards, applicable building codes, or other governing regulations. (Third-Party Complaint at {1 31 — 32). As discussed above, this claim is factually deficient. But it is also legally deficient based on the contract. The contract attached to the Third-Party Complaint is entitled “Independent Contractor Agreement.” It addresses only six issues: (1) All Glass is operating in Florida under its stated name; (2) All Glass is an independent contractor and not an employee of Weathermaster; (3) All Glass has workers’ compensation insurance; (4) All Glass has general liability insurance; (5) any lapse in coverage will result in withheld payments or cease work orders; and (6) All Glass will indemnify Weathermaster for certain claims made by All Glass employees or subcontractors. The contract does not identify the project, All Glass’s scope of work, any related contract drawings or specifications, or industry standards, building codes or other governing regulations to be followed. When the language of a contract is unambiguous, there is no occasion for judicial construction. The clear language controls. Dune Iv. Palms N. Owners Ass'n, 605 So. 2d 903, 905 (Fla. 1st DCA 1992). Courts cannot change the duties and obligations negotiated. Hospital Corp. of Am. V. Florida Med. Ctr., 710 So. 2d 573, 575 (Fla. 4th DCA 1988). Weathermaster fails to identify any provision of the Indpendent Contractor Agreement that All Glass breached. Count 2 should be dismissed. V. Count 3 fails to state a claim for violation of Florida Building Code. Count 3 against All Glass is a generic claim for statutory cause of action pursuant to Fla. Stat. § 553.84. The generic nature of the claim requires dismissal as discussedabove. Weathermaster does not offer any description or identify any sections of the applicable building code that All Glass violated. That is insufficient. See Gazzara v. Pulte Home Corp., 207 F. Supp. 3d 1306, 1310 (M.D. Fla. 2016) (mere conclusory allegations of building code violations without facts or identification of the building code provision fails to state a claim under § 553.84). Weathermaster has failed to state a claim for building code violation. Count 3 should be dismissed. VI. Count 4 fails to state a claim for negligence. Count 4 purports to state a negligence claim. As discussed above, it is conclusory and fails to include sufficient ultimate facts. That is, it fails to plausibly allege the hornbook negligence requirements of duty, breach, causation, and damages. Moreover, “in order to bring a valid tort claim, a party [] must demonstrate that all of the required elements for the cause of action are satisfied, including that the tort is independent of any breach of contract claim.” Tiarra Condo. Ass’n Inc. v. Marsh & McLennan Companies, Inc., 110 So. 3d 399, 408 (Fla. 2013) (Pariente, J., concurring) (citing Lewis v. Guthartz, 428 So. 2d 222, 224 (Fla. 1982)). An independent tort claim requires facts separate and distinct from the breach of contract. HTP, Ltd. V. Lineas Aeareas Costarricenses, S.A., 685 So. 2d 1238, 1239 (Fla. 1996). In comparing the allegations of Count 2 (breach of contract) and Count 3 (negligence), it is clear that Weathermaster has not alleged a tort that is independent of an alleged breach of contract. Each count, in conclusory fashion, alleges that All Glass’s work was not performed in a workmanlike manner, in accordance with any and all contract drawings, and specifications, and in compliance with industry standards. Compare {32 and 42. And the factual basis for each claim is the same. In addition to failing to allege sufficient factual allegations, Count 4 should be dismissed because it does not allege an independent tort.Conclusion Weathermaster’s Third-Party Complaint suffers from numerous deficiencies requiring dismissal. It fails to allege sufficient ultimate facts and further fails to satisfy the requisite elements for common law indemnification, breach of contract, building code violation, and negligence. All Glass respectfully requests that this Court grant this Motion to Dismiss and dismiss Counts 1 — 4 of Weathermaster’s Third-Party Complaint. Certificate of Service I HEREBY CERTIFY that on April 12, 2021, the foregoing was electronically filed through the Florida Courts E-Filing Portal which will serve a copy to all parties on the Service List. /s/ Eric J. Netcher ERIC J. NETCHER Florida Bar No. 106530 Walker, Revels, Greninger & Netcher PLLC 189 S. Orange Ave., Suite 1830 Orlando, Florida 32801 407-789-1830 enetcher@wrgn-law.com hpaymayesh@wrgn-law.com, Counsel for Third-Party Defendant All Glass Installation Corp. SERVICE LIST COUNSEL FOR VILLAS AT EMERALD LAKE HOMEOWNERS ASSOCIATION, INC. Phillip Joseph, Esq. Evan Small, Esq. Jeffrey A. Widelitz, Esq. Nicholas B. Vargo, Esq. Ball Janik, LLP 201 E. Pine Street, Suite 600 Orlando, FL 32801 T: 407-455-5664 F: 407-902-2105 pjoseph@balljanik.com COUNSEL FOR ROYAL OAK HOMES, LLC Lannie D. Hough Jr., Esq. Robin Leavengood, Esq. Carlton Fields 4221 W. Boy Scout Blvd, Suite 1000 Tampa, FL 33607 though@carltonfields.com nbonilla@carltonfields.com leavengood@carltonfields.com vwilliams@carltonfields.comesmali@balljanik.com jwidelitz@balljanik.com nvargo@balljanik.com ypalmer@balljanik.com orlandodocket@balljanik.com mwise@balljanik.com COUNSEL FOR WEATHERMASTER BUILDING PRODUCTS, INC. Michael E. Milne, Esq. Peter J. Kapsales, Esq. Milne Law Group, P.A. 301 E. Pine Street, Suite 525 Orlando, FL 32801 T: 321-558-7700 F: 407-641-2111 mumilne@milnelawgroup.com spalazzolo@milnelawgroup.com eservice@miinelawgroup.com pkapsales@milnelawgroup.com mefta@milnelawgroup.com COUNSEL FOR ALL GLASS INSTALLATION CORP. Eric J. Netcher, Esq Walker, Revels, Greninger & Netcher, PLLC 189 S. Orange Avenue, Suite 1830 Orlando, FL 32801 T: 407-789-1830 F: 321-251-2980 hpaymayesh@wrgn-law.com COUNSEL FOR ADVANCED WRAPPING AND CONCRETE SOLUTIONS OF CENTRAL FLORIDA, INC. Jayne Ann Pittman, Esq. Conroy Simberg 2 South Orange Avenue, Suite 300 Orlando, FL 32801 T: 407-649-9797 F: 407-649-1968 eserviceorl|@conroysimberg.com jpittman@conroysimberg.com mmaitland@conroysimberg.com COUNSEL FOR WEINTRAUB INSPECTIONS & FORENSIC, INC. Timothy C. Ford, Esq. Andrew E. Holway, Esq. Hill Ward Henderson 101 E. Kennedy Blvd., Suite 3700 Tampa, FL 33602 T: 813-221-3900 F: 813-221-2900 tim.ford@hwhlaw.com Andrew holway@hwhlaw.com Tracy.coale@hwhlaw.com Kathy.wernsing@hwhlaw.com Derrick.calandra@hwhlaw.com COUNSEL FOR HUGH MACDONALD CONSTRUCTION, INC. Paul Sidney Elliott, Esq. P.O. Box 274204 Tampa, FL 33688-4204 pse@psejd.com COUNSEL FOR IMPERIAL BUILDING CORPORATION Thamir A.R. Kaddouri, Jr., Esq. Penelope T. Rowlett, Esq. Beth Ann Tobey, Esq. Law Office of Thamir A.R. Kaddouri, Jr., P.A. 3220 West Cypress Street 10Tampa, FL 33607 T: 813-879-5752 F: 813-879-5707 Thamir.Kaddouri@tampalaw.org Service@Tampalaw.org Penelope.Rowlett@tampalaw.org COUNSEL FOR DON KING’S CONCRETE, INC. Kate F. Gaset, Esq. Denise M. Anderson, Esq. Butler Weihmuller Katz Craig LLP 400 N. Ashley Drive, Suite 2300 Tampa, FL 33602 T: 813-281-1900 danderson@butler.legal kgaset@butler.legal munilligan@butler.legal jlacobs@butler.legal COUNSEL FOR BROWN + COMPANY ARCHITECTURE, INC. Bruce R. Calderon, Esq. D. Bryan Hill, Esq. Audra R. Creech, Esq. Milber Makris Plousadis & Seiden, LLP 1900 NW Corporate Blvd., East Tower, Suite 440 Boca Raton, FL 33431 T: 561-994-7310 F: 561-994-7313 bealderon@milbermakris.com dhili@milbermakris.com acreech@milbermakris.com 11