Motion-Secondary: VILLAS AT EMERALD LAKE HOMEOWNERS ASSOCIATION INC vs. ROYAL OAK HOMES LLC

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                                Filing # 122122262 E-Filed 02/26/2021 09:01:48 AM

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

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

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

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 OAK HOMES, LLC, a Florida
limited Liability company,

Crossclaim Plaintiff,
v.

ADVANCED WRAPPING AND CONCRETE

Page 1 of 7SOLUTIONS OF CENTRAL FLORIDA,
INC., a Florida corporation; DON KING'S
CONCRETE, INC., a Florida corporation;
HUGH MACDONALD CONSTRUCTION,
INC., a Florida corporation; IMPERIAL
BUILDING CORPORATION, a Florida
corporation; PREMIER PLASTERING OF
CENTRAL FLORIDA, INC N/K/A TGK
STUCCO, INC., a Florida corporation;
WEATHERMASTER BUILDING
PRODUCTS, INC., a Florida corporation;
WEINTRAUB INSPECTIONS &
FORENSICS, INC. N/K/A WEINTRAUB
ENGINEERING AND INSPECTIONS, INC.,
WOLF'S IRRIGATION & LANDSCAPING,
INC., a Florida corporation;
BROWN+COMPANY ARCHITECTURE,
INC., a Florida corporation;

Crossclaim Defendants.

WEATHERMASTER BUILDING
PRODUCTS, INC., a Florida Corporation;

Third-Party Plaintiff,
v.

ALL GLASS INSTALLATION CORP., a
Florida Profit Corporation, CLEAR VISTA.
INSTALLATION CORP., a Florida Profit
Corporation, T&M CONSTRUCTION OF
SANFORD, INC., a Florida Profit
Corporation, CASEY HAWKINS GLASS,
INC. a Florida Profit Corporation, WELL
HUNG WINDOWS & DOORS, LLC. a
Florida Limited Liability Company, FRED
BOWEN CONSTRUCTION, INC., a Florida
Profit Corporation, WINGNUT
CONSTRUCTION, INC., a Florida Profit
Corporation, SOUTHERN WINDOWS, LLC.,
a Florida Limited Liability Company.

Third-Party Defendants.

Page 2 of 7CASEY HAWKINS GLASS, INC.’S MOTION TO
DISMISS WEATHERMASTER BUILDING PRODUCTS, INC.’S
THIRD-PARTY COMPLAINT AND INCORPORATED MEMORANDUM OF LAW.

Third-Party Defendant, CASEY HAWKINS GLASS, INC. (“Casey Hawkins”), by and
through its undersigned counsel and pursuant to Fla. R. Civ. P 1.140(b)(6), moves to dismiss
Counts VI of the Third-Party Complaint filed by Defendant/Crossclaim Defendant/Third-Party
Plaintiff, WEATHERMASTER BUILDING PRODUCTS, INC. (hereinafter, “Weathermaster”),
and in support, asserts the following:

1. This matter arises out of the construction and sale of individual units and common
areas of the Villas at Emerald Lake residential development located in Osceola, Florida
(hereinafter, the “Project”).

2. The plaintiff is VILLAS AT EMERALD LAKE HOMEOWNERS
ASSOCIATION, INC. (the “Plaintiff”).

3. Plaintiff sued the Project’s developer and general contractor, ROYAL OAK
HOMES, LLC (“Royal Oak”), and Weathermaster. Royal Oak subsequently filed a Crossclaim
against various subcontractors and materials providers, including Weathermaster.

4. On or about January 18, 2021, Weathermaster filed a Third-Party Complaint
against several of its subcontractors, including Casey Hawkins. Casey Hawkins was served with
the Third-Party Complaint on or about February 8, 2021.

5. In its Third-Party Complaint, Weathermaster asserts claims against Casey
Hawkins for common law indemnity, breach of contract, violation of the Florida Building Code
and negligence. Weathermaster includes as an exhibit to its Third-Party Complaint a copy of the

contract with Casey Hawkins on which it bases its claim for breach of contract.

Page 3 of 76. Casey Hawkins files this Motion to Dismiss Weathermaster’s cause of action for
Breach of Contract (Count VI) because this count is insufficiently plead to entitle Weathermaster
to relief.

MEMORANDUM OF LAW
I. Motion to Dismiss Standard

A properly plead cause of action must contain sufficient ultimate facts to demonstrate
that the pleader is entitled to relief. Pratus v. City of Naples, 807 So. 2d 795 (Fla. 2d DCA 2002).
When considering whether the allegations in a complaint are sufficient to support a particular
cause of action, the Court is confined to a review of the complaint and any incorporated exhibits.
Santiago v. Mauna Loa Invs., LLC, 189 So. 3d 752, 755 (Fla. 2016). Whether the allegations in a
complaint are sufficient is a question of law. Siegle v. Progressive Consumers Ins. Co., 819 So.
2d 732 (Fla. 2002).

I. Weathermaster’s Claim for Breach of Contract is not Supported by the Attached
Independent Contract Agreement and Should be Dismissed

Count VI of Weathermaster’s Third-Party Complaint is for breach of the Independent
Contract Agreement with Casey Hawkins, which is attached to the Third-Party Complaint.
Weathermaster’s description of the breach is that Casey Hawkins failed to perform its scope of
work at the Project in a workmanlike manner, in accordance with all contract drawings and
specifications, and in compliance with industry standards, applicable building codes or other
governing regulations.

Weathermaster does not, and cannot, point to any provision of the written contract to
support its breach of contract allegations. That is because the contract addresses only six issues:
(1) Casey Hawkins is operating in Florida under its stated name; (2) Casey Hawkins is an

independent contractor and not an employee of Weathermaster; (3) Casey Hawkins has workers

Page 4 of 7compensation insurance; (4) Casey Hawkins has general liability insurance; (5) Any lapse in
coverage will result in withheld payments or cease work orders; and (6) Casey Hawkins will
indemnify Weathermaster for certain claims made by Casey Hawkins’ employees or
subcontractors. The contract does not identify the Project, Casey Hawkins’ scope of work, any
related contract drawings or specifications, or industry standards, building codes or other
governing regulations to be followed.

Where the language of a contract is unambiguous, there is no occasion for judicial
construction. Clear contract language controls. Dune I v. Palms N. Owners Ass'n, 605 So. 2d
903, 905 (Fla. 1 DCA 1992). Courts are not free to add duties or obligations to a negotiated
agreement. Hospital Corp. of Am. v. Florida Med. Ctr., 710 So. 2d 573, 575 (Fla. 4" DCA
1988).

Weathermaster has failed to allege any particular provision of the contract that Casey
Hawkins is to have breached. Rather, Weathermaster attaches the contract to its Third-Party
Complaint and then alleges breaches entirely unrelated to the parties’ written agreement.
Accordingly, Weathermaster’s count for breach of contract should be dismissed because it
cannot support a claim for breach of the attached contract.

WHEREFORE, Third-Party Defendant, Casey Hawkins Glass, requests that the Court
dismiss Counts VI of the Third-Party Complaint filed by Defendant/Crossclaim
Defendant//Third-Party Plaintiff, Weathermaster Building Products, Inc., and for any such

further relief the Court deems proper and just.

[>| Phillip S. Howell

 

PHILLIP S. HOWELL, FL Bar No. 377030
KYLE R. MCNEAL, FL Bar No. 102757
Galloway, Johnson, Tompkins, Burr & Smith, P.L.C.
400 N. Ashley Dr., Suite 1000

Page 5 of 7Tampa, FL 33602

(813) 977-1200 « (813) 977-1288 — Facsimile
tampaservice@gallowaylawfirm.com
phowell@gallowaylawfirm.com

kmeneal@gallowaylawfirm.com
Counsel for Third-Party Defendant, Casey Hawkins

Glass, Inc.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to

the following parties, via electronic mail, this 26" day of February, 2021:

 

BALL JANIK LLP
Phillip E. Joesph, Esq.
Evan J. Small, Esq.
Jeffrey A. Widelitz, Esq.
Nicholas B. Vargo, Esq.
201 East Pine Street, Suite 600
Orlando, Florida 32801
pioseph@balljanik.com
esmal|@balljanik.com
jwidelitz@balljanik.com
nyvargo@balljanik.com
ypalmer@balljanik.com
mwise@pballjanik.com

orlandodocket@balljanik.com
Counsel for Plaintiffs

CARLTON FIELDS

Lannie D. Hough Jr., Esq.

Robin Leavengood, Esq.

4221 W. Boy Scout Blvd, Suite 1000 Tampa,
Florida 33607

lhough@carltonfields.com
nbonilla@carltonfields.com
leavengood@ecarltonfields.com
brosa@carltonfields.com

ywilliams@carltonfields.com
Counsel for Defendant, Royal Oak Homes,
LLC

 

 

HILL WARD HENDERSON
Timothy C. Ford, Esq.

Andrew E. Holway, Esq.

101 E. Kennedy Blvd., Suite 3700
Tampa, Florida 33602
tim.ford@hwhlaw.com

andrew. holway@hwhlaw.com
tracy.coale@hwhlaw.com
Kathy.wernsing@hwhlaw.com
derrick.calandra@hwhlaw.com

Counsel for Weintraub Inspections &
Forensic, Inc.

Paul Sidney Elliott, Esq.

P.O. Box 274204

Tampa, FL 33688-4204

pse@psejd.com

Counsel for Hugh MacDonald Construction,
Ine.

 

 

LAW OFFICE OF THAMIR A. R.
KADDOURI, JR., P.A.

Thamir A.R. Kaddouri, Jr., Esq.
Penelope T. Rowlett, Esq.

BUTLER WEIHMULLER KATZ CRAIG
LLP

Kate F. Gaset, Esq.

Denise M. Anderson, Esq.

 

 

Page 6 of 7Beth Ann Tobey, Esq.

3220 West Cypress Street
Tampa, Florida 33607
thamir.kaddouri@tampalaw.org

service@tampalaw.org
Counsel for Defendant, Imperial Building

Corporation

400 N. Ashley Drive, Suite 2300
Tampa, FL 33602
danderson@butler. legal
kgaset@pbutler legal
jjacobs@butler.com
mumilligan@butler.legal

Counsel for Defendant, Don King’s Concrete,
Inc.

 

 

CONROY SIMBERG

Jayne Ann Pittman, Esq.

Two South Orange Avenue, Suite 300
Orlando, FL 32801
eserviceorl@conroysimberg.com
jpittman@conroysimberg.com

mmaitland@conroysimberg.com
Counsel for Advanced Wrapping and Concrete

Solutions of Central Florida, Inc.

 

MILBER MAKRIS PLOUSADIS &
SEIDEN, LLP

Bruce R. Calderon, Esq.

D. Bryan Hill, Esq.

Audra R. Creech, Esq.

1900 NW Corporate Blvd., East Tower, Suite
440 Boca Raton, Florida 33431
bealderon@milbermakris.com
dhill@milbermakris.com
acreech@milbermakris.com

Counsel for Defendant, Brown + Company
Architecture, Inc.

 

[s] Phillip S. Howell

 

PHILLIP S. HOWELL
KYLE R. MCNEAL

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