Answer: VILLAS AT EMERALD LAKE HOMEOWNERS ASSOCIATION INC vs. ROYAL OAK HOMES LLC

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                                Filing # 121716774 E-Filed 02/19/2021 01:00:51 PM

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,
Case No. 2020-CA-002942
Plaintiff,

v.

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,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;

Crossclaim Defendants.

/

WEATHERMASTER BUILDING
PRODUCTS, INC., a Florida corporation,

Third-Party Plaintiff,
Vv.

ALL GLASS INSTALLATION CORP., a
Florida corporation, CASEY HAWKINS,
GLASS, INC., a Florida corporation, DEAN
NESBIT, LLC, a Florida limited liability
company; HELBERG ENTERPRISES, LLC a
Florida limited liability company; HOBBIT
WINDOWS, LLC, a Florida limited liability
company; T&M CONSTRUCTION OF
SANFORD, INC., a Florida corporation;
WELL DONE WINDOWS, INC., a Florida
corporation; and WELL HUNG WINDOWS &
DOORS, LLC, a Florida limited liability
company;Third-Party Defendants.

THIRD PARTY DEFENDANT, WELL HUNG WINDOWS AND DOORS, LLC’S
ANSWER AND AFFIRMATIVE DEFENSES TO THIRD PARTY
PLAINTIFF’S THIRD PARTY COMPLAINT

Third-Party Defendant, WELL HUNG WINDOWS AND DOORS, LLC (“WELL

HUNG”), by and through its undersigned counsel, pursuant to Fla. R. Civ. P. 1.140, hereby files

its Answer and Affirmative Defenses to the Third Party Complaint of Third Party Plaintiff,

WEATHERMASTER BUILDING PRODUCTS, INC. (“WEATHERMASTER’”), and states as

follows:

PARTIES, JURISDICTION AND VENUE

1. WELL HUNG admits the allegations contained in this paragraph for jurisdictional

purposes only; otherwise denied.

2. WELL HUNG admits the allegations contained within this paragraph of the

complaint.

3. WELL HUNG is without knowledge of the allegations contained within this

paragraph; therefore denied.
4. WELL HUNG is without knowledge of the
paragraph; therefore denied.
5. WELL HUNG is without knowledge of the
paragraph; therefore denied.
6. WELL HUNG is without knowledge of the
paragraph; therefore denied.
7. WELL HUNG is without knowledge of the
paragraph; therefore denied.
8. WELL HUNG is without knowledge of the

paragraph; therefore denied.

allegations

allegations

allegations

allegations

allegations

contained within

contained within

contained within

contained within

contained within

this

this

this

this

this9. WELL HUNG is without knowledge of the allegations contained within this
paragraph; therefore denied.
10. WELL HUNG is without knowledge of the allegations contained within this
paragraph; therefore denied.
11. | WELL HUNG admits that it was a Florida Corporation authorized to conduct
business in Osceola County, Florida. WELL HUNG is without sufficient knowledge to

admit or deny the remaining allegations in Paragraph 11, therefore denied.

GENERAL ALLEGATIONS

12. WELL HUNG admits the allegations contained within this paragraph of the
complaint.

13. | WELL HUNG is without knowledge of the allegations contained within this
paragraph; therefore denied.

14. | WELL HUNG admits that the ASSOCIATION’S complaint attached as Exhibit A
to the Third Party complaint speaks for itself; otherwise denied.

15. WELL HUNG admits that the ROYAL OAK’S crossclaim attached as Exhibit B
to the Third Party complaint speaks for itself; otherwise denied.

B. WEATHERMASTER’S Sub-subcontractors.

16. WELL HUNG is without knowledge of the allegations contained within this
paragraph; therefore denied.
17. WELL HUNG is without knowledge of the allegations contained within this
paragraph; therefore denied.

C. The Alleged Defects.

18. WELL HUNG admits that the ASSOCIATION’S complaint speaks for itself;

otherwise denied.19. WELL HUNG admits that the ROYAL OAK’S complaint speaks for itself;
otherwise denied.

20. WELL HUNG is without knowledge of the allegations contained within this
paragraph; therefore denied.

21. | WELL HUNG denies the allegations contained within this paragraph of the
complaint and demands strict proof thereon.

22. WELL HUNG denies the allegations contained within this paragraph of the
complaint and demands strict proof thereon.

23. WELL HUNG denies the allegations contained within this paragraph of the

complaint and demands strict proof thereon.

COUNTS I THORUGH XXVIII

24. - 166. WELL HUNG understands Counts I through XXVIII of the Third Party
complaint as making no allegation(s) against it; accordingly, WELL HUNG understands it
is under no obligation to respond to same. However, in the event, and to the extent
WEATHERMASTER made or attempted to make an allegation(s) against WELL HUNG
and WELL HUNG is obligated to response, MAGICAL HANDS denies the allegation(s)

and demands strict proof thereon.

COUNT XXIX —- COMMON LAW INDEMNITY
(against WELL HUNG)

167. WELL HUNG reasserts, re-alleges and incorporates by reference its answers to
paragraphs | through 23 above.

168. WELL HUNG admits the allegations contained in this paragraph for jurisdictional
purposes only; otherwise denied.

169. WELL HUNG denies the allegations contained within this paragraph of the
complaint and demands strict proof thereon.

170. WELL HUNG is without knowledge of the allegations contained within this

paragraph; therefore denied.171. WELL HUNG denies the allegations contained within this paragraph of the

complaint and demands strict proof thereon.

COUNT XXX — BREACH OF ORAL CONTRACT.
(against WELL HUNG)

172. WELL HUNG reasserts, re-alleges and incorporates by reference its answers to
paragraphs | through 23 above.
173. WELL HUNG admits the allegations contained in this paragraph for jurisdictional
purposes only; otherwise denied.
174. WELL HUNG denies the allegations contained within this paragraph of the
complaint and demands strict proof thereon.
175. WELL HUNG denies the allegations contained within this paragraph of the
complaint and demands strict proof thereon.
176. WELL HUNG denies the allegations contained within this paragraph of the

complaint and demands strict proof thereon.

COUNT XXXI —- BUILDING CODE VIOLATIONS
(against WELL HUNG)

177. WELL HUNG reasserts, re-alleges and incorporates by reference its answers to
paragraphs 1 through 23 above.
178. WELL HUNG admits the allegations contained in this paragraph for jurisdictional
purposes only; otherwise denied.
179. WELL HUNG denies the allegations contained within this paragraph of the
complaint and demands strict proof thereon.
180. WELL HUNG denies the allegations contained within this paragraph of the
complaint and demands strict proof thereon.
181. WELL HUNG denies the allegations contained within this paragraph of the

complaint and demands strict proof thereon.COUNT XXXII - NEGLIGENCE
(against WELL HUNG)

182. WELL HUNG reasserts, re-alleges and incorporates by reference its answers to
paragraphs 1 through 23 above.

183. WELL HUNG admits the allegations contained in this paragraph for jurisdictional
purposes only; otherwise denied.

184. WELL HUNG denies the allegations contained within this paragraph of the
complaint and demands strict proof thereon.

185. WELL HUNG denies the allegations contained within this paragraph of the
complaint and demands strict proof thereon.

186. WELL HUNG denies the allegations contained within this paragraph of the

complaint and demands strict proof thereon.

AFFIRMATIVE DEFENSES

In response to the allegations in the Complaint, WELL HUNG raises the following

Affirmative Defenses and states as follows:

1. The claims made by Plaintiff is barred by the applicable statute of limitations and/or
statute of repose as set forth in Florida Statute §95.11.

2. WEATHERMASTER has failed to state a cause of action against WELL HUNG
for which relief can be granted.

3. Any damages alleged to have been suffered by Plaintiffs or Weathermaster are the
result of superseding, independent or intervening causes, or are the result of yet unknown causes
over which WELL HUNG had no control.

4. Without admitting liability, any defective or deficient work alleged to have been
the result of work performed by WELL HUNG is a result of lack of proper maintenance, abuse or
neglect by Plaintiff.

5. To the extent that the Plaintiffs or Weathermaster have failed to mitigate any
alleged damages, the Plaintiffs and Weathermaster are not entitled to recover for those damages

that could have been avoided through reasonable care and mitigation.6. WELL HUNG is entitled to a set-off for any payments as provided in Florida
Statutes §768.76, or any other pertinent and applicable provision, including Chapter 627, paid or
payable to the Plaintiffs or Weathermaster for any damages alleged in the Complaint from any
collateral source or settlement agreement.

7. Without admitting liability, any liability found on the part of WELL HUNG and
any damages awarded in favor of Weathermaster, are subject to the comparative fault provisions
of § 768.81, Florida Statutes and Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993), WELL HUNG is
not liable for more than its proportionate share of any economic damages in relation to all other
responsible parties and non-parties, including but not limited to all other named parties in the
instant action, after reduction for comparative percentage of fault, which includes the fault of those
for whom the Plaintiff, Weathermaster, and/or co-Fourth-Party Defendants are or may be held
vicariously liable. WELL HUNG specifically names each and every party to this action, and any
affiliates of the aforementioned, and any other persons or entities involved with the construction
of the Project, whose identify remains unknown, who were negligent and at fault for any damages
provided by the Plaintiffs or Weathermaster. WELL HUNG reserves the right to supplement this
Affirmative Defense as discovery progresses in this action.

8. Without admitting liability, WELL HUNG affirmatively alleges that it is not liable
to Plaintiffs or Weathermaster because the defects complained of were patent and obvious in
nature. Slavin v. Kaye, 108 So. 2d 462 (Fla. 1959)

9. To the extent that any damages would place the Plaintiffs or Weathermaster in a
position superior to the events complained of, the same constitute betterment, to which the
Plaintiffs or Weathermaster are not entitled.

10. | WEATHERMASTER’s claims are precluded or limited by the Florida Economic
Loss Rule.

11. To the extent that any claimed damages result in economic waste, the same are
prohibited pursuant to Florida law and Grossman Holdings Ltd. v. Houriban, 414 So. 2d 1037 (Fla.
1982).

12. Weathermaster‘s claims, including, but not limited to, the negligence-based claims
are barred by the economic loss doctrine. See Casa Clara Condo. Ass’n, Inc. v. Charley Toppinio
& Sons, Inc., 620 So. 2d 1244 (Fla. 1993); Tiara Condo Ass'n, Inc. v. Marsh & McLennan Cos.,
Inc., 110 So. 3d 399 (Fla. 2013).13. Without admitting liability, WELL HUNG affirmatively alleges to the extent that
any alleged defects in WELL HUNG’s scope of work are wholly the result of normal wear and
tear and/or damages due to weather conditions or other causes or circumstances.

14. | WELL HUNG incorporates and asserts al of the affirmative defenses alleged by
WEATHERMASTER or other defendants and third party defendants.

15. Pursuant to the independent tort doctrine, Weathermaster must allege a duty under
its claim for negligence that is independent and separate from any duty created under the contract.
See Lewis v. Guthartz, 428 So. 2d 222, 223 (Fla. 1982); Weimer v. Yacht Club Point Estates, Inc.,
223 So. 2d 100, 103 (Fla. 4th DCA 1969).

RESERVATION OF RIGHTS

WELL HUNG states that it hereby reserves the right to add additional Affirmative

Defenses as research and discovery in this matter progress.

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 19" day of February, 2021, I electronically filed the
foregoing with the Clerk of the Court by using the Florida Court’s e-Filing Portal, which will
deliver electronic copies of said filing pursuant to Fla. R. Jud. Admin. 2516 to the designated email
addresses for all counsel of record.
WRIGHT, FULFORD, MOORHEAD & BROWN, P.A.

/s/ Cole Copertino

COLE J. COPERTINO, ESQUIRE
Florida Bar Number: 76456

505 Maitland Avenue, Suite 1000
Altamonte Springs, Florida 32701
Telephone: (407) 425-0234
Facsimile: (407) 425-0260
ccopertino@wfmblaw.com
cbraungart@wfmblaw.com

lwilliams@wfmblaw.com
Attorney for Well Hung Windows & Doors

2611-001