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

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                                Filing # 118718434 E-Filed 12/24/2020 09:57:10 AM

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

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

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

WEINTRAUB’S MOTION TO DISMISS AND,
ALTERNATIVELY, MOTION FOR MORE DEFINITE STATEMENT

 

Defendant, WEINTRAUB INSPECTIONS & FORENSIC, INC., n/k/a WEINTRAUB
ENGINEERING AND INSPECTIONS, INC. (“Weintraub”), by and through its undersigned

counsel, hereby files its Motion to Dismiss Plaintiff, VILLAS AT EMERALD LAKEHOMEOWNERS ASSOCIATION, INC.’s (“Plaintiff’ or the “Association”), Complaint and,
Alternatively, Motion for More Definite Statement, and in support thereof states as follows:
Factual Background and Summary of Argument

This dispute arises out of the construction of the townhomes and common areas at the
Villas at Emerald Lake community located in Osceola County, Florida (the “Project’”). In its
Complaint and Demand for Jury Trial (the “Complaint”), Plaintiff alleges claims against
Weintraub in Counts 24 and 25 for Violation of the Florida Building Code and Professional
Negligence, respectively. As set forth in greater detail below, Plaintiff's claim against
Weintraub for Violation of the Florida Building Code (Count 24) should be dismissed for failure
to state a cause of action. Additionally, the Complaint is an impermissible “shotgun” pleading
that should be dismissed, or, in the alternative, Plaintiff should be required to provide a more
definite statement.

Motion to Dismiss Standard

A motion to dismiss tests a complaint’s legal sufficiency. In re: Forfeiture of 2007 Ford
£350 Pickup Truck, 987 So. 2d 148, 149 (Fla. 2d DCA 2008) (quoting Barbado v. Green and
Murphy PA, 758 So. 2d 1173, 1174 (Fla. 4 DCA 2000)). “Upon a motion to dismiss a
complaint for failure to state a cause of action, all material allegations of the complaint are taken
as true . . . [and] then reviewed in light of the applicable substantive law to determine the
existence of a cause of action.” Blue Supply Corp. v. Novos Electro Mechanical, Inc., 990 So. 2d
1157, 1159 (Fla. 3d DCA 2008). “To survive a motion to dismiss, a complaint must allege
‘sufficient ultimate facts’ showing entitlement to relief.” Stein v. BBX Capital Corp., 241 So. 3d
874, 876 (Fla. 4th DCA 2018). Dismissal is also proper where a complaint fails to comply with

the Florida Rules of Civil Procedure, including the requirement of Rule 1.110(b) that thecomplaint contain “a short and plain statement of the ultimate facts showing that the pleader is
entitled to relief.” See Fla. R. Civ. P. 1.420(b); Fla. R. Civ. P. 1.110(b); Collado v. Baroukh, 226
So. 3d 924, 927 (Fla. 4th DCA 2017).

Argument

A. Plaintiff's claim against Weintraub for Violation of the Florida Building Code
(Count 24) should be dismissed for failure to state a cause of action.

Plaintiffs claim against Weintraub for Violation of the Florida Building Code should be
dismissed for failure to state a cause of action. More specifically, Plaintiff has failed to state a
cause of action against Weintraub under Section 553.84, Florida Statutes, because Weintraub, as
an inspector, is not subject to liability under Section 553.84, Florida Statutes. Section 553.84,
Florida Statutes, provides that

any person . . . damaged as a result of a violation of this part or the
Florida Building Code, has a cause of action in any court of

competent jurisdiction against the person or party who committed

the violation... .
§ 553.84, Fla. Stat. (emphasis added). The plain language of Section 553.84, Florida Statutes,
unequivocally limits the universe of potentially liable parties to only those entities that actually
committed the building code violation.

Consistent with the plain language of the statute, Florida caselaw is clear that a claim
under Section 553.84, Florida Statutes, cannot be properly stated against an entity that did not
construct, erect, alter, repair, or demolish the building in question. See Casa Clara Condo.
Ass’n, Inc. v. Charley Toppino & Sons, Inc., 588 So. 2d 631, 634 (Fla. 3d DCA
1991), approved, 620 So. 2d 1244 (Fla. 1993) (claim for building code violation under Section

553.84, Florida Statutes, was not permitted against a materials supplier because the materials

supplier did not perform any “construction, erection, alteration, repair, or demolition” of thestructure); see also Scherer v. Villas Del Verde Homeowners Ass‘n, Inc., 55 So. 3d 602, 604 (Fla.

2d DCA 2011) (holding that primary qualifying agent’s failure to supervise company’s defective

construction did not give rise to a cause of action under Section 553.84, Florida Statutes, and
stating “Scherer's failure to supervise was not a violation of the building code.”); 8 Fla. Prac.,

Constr. Law Manual § 16:6 (2019-2020 ed.) (“a supplier, or other person who does not perform

installation with code requirements, is not subject to an action for violation of the code.”)

(emphasis added).

Plaintiff alleges that Weintraub was “hired to inspect and/or approve the construction of
the ROH Townhomes and common areas of the Community,”! but Plaintiff has not alleged (and
cannot in good faith allege) that Weintraub performed any installation, construction, erection,
alteration, repair, or demolition of any buildings at the Project. Accordingly, Plaintiff has failed
to state a cause of action against Weintraub under Section 553.84, Florida Statutes, and Count 24
of Plaintiff's Complaint must be dismissed.

B. Plaintiff's claims against Weintraub should be dismissed because the Complaint is a
“shotgun pleading” that fails to comply with Florida Rule of Civil Procedure
1.110(b).

In addition to the independently sufficient reason for dismissal discussed above, the
Complaint must also be dismissed because it constitutes a “shotgun pleading” that does not
comply with Florida Rule of Civil Procedure 1.110(b)’s requirement that the Complaint contain
“a short and plain statement of the ultimate facts showing that the pleader is entitled to relief.”
Fla. R. Civ. P. 1.110(b). More specifically, Plaintiffs claim against Weintraub for Professional
Negligence (Count 25) not only incorporates Plaintiff's general allegations but also
impermissibly incorporates the allegations of Plaintiffs claim against Weintraub for Violation of
the Florida Building Code (Count 24). Count 25 is thus a combination of both of Plaintiffs

1236, Complaint.claims against Weintraub, which adds confusion and difficulty in framing a responsive pleading
and defenses.

Multiple Florida courts have condemned this style of pleading and found it to be in
violation of Florida Rule of Civil Procedure 1.110(b). Gerentine v. Coastal Security Systems,
529 So. 2d 1191, 1194 (Fla. 5th DCA 1988) (affirming trial court’s dismissal of complaint for
violating Florida Rule of Civil Procedure 1.110(b) where certain counts in a complaint “not only
incorporated by reference the preliminary allegations of the complaint, but also incorporated by
reference all the allegations of each preceding count.”); see also Chaires v. N. Florida Nat. Bank,
432 So. 2d 183, 185 (Fla. 1st DCA 1983) (describing practice of incorporating allegations of
preceding counts into subsequent counts as “improper” and “an unnecessary hindrance to [the]
trial courts’ efforts to determine the facial validity of the various causes being asserted and
serv[ing] only to confuse and delay.”); RHS Corp. v. City of Boynton Beach, 736 So. 2d 1211,
1212-13 (Fla. 4th DCA 1999).

The Complaint does not comply with Florida Rule of Civil Procedure 1.110(b) and
should therefore be dismissed. Alternatively, and at a minimum, this Court should require
Plaintiff to provide a more definite statement of its claims against Weintraub in a manner that
complies with Florida Rule of Civil Procedure 1.110(b).

Conclusion

Count 24 of Plaintiff's Complaint should be dismissed for failure to state a cause of
action. Additionally, Plaintiff's Complaint should be dismissed for failure to comply with the
pleading requirements under Florida Rule of Civil Procedure 1.110(b), or, alternatively, Plaintiff
should be required to amend its Complaint to provide a more definite statement of its claims

against Weintraub in a manner that complies with Florida Rule of Civil Procedure 1.110(b).WHEREFORE, Weintraub respectfully requests that this Court enter an Order in its favor,

dismissing Plaintiff's claims against Weintraub or, alternatively, requiring Plaintiff to provide a

more definite statement, and awarding such other and further relief as this Court may deem just

and proper.

Respectfully submitted,

/s/ Andrew I. Holway
Timothy C. Ford, Esquire

Florida Bar No. 173770

Andrew E. Holway, Esquire
Florida Bar No. 098559

Hill Ward Henderson

101 E. Kennedy Blvd., Suite 3700
Tampa, Florida 33602

Telephone: 813-221-3900

Fax: 813-221-2900
tim.ford@hwhlaw.com
andrew.holway@hwhlaw.com
tracy.coale@hwhlaw.com
Kathy.wernsing(@hwhlaw.com
derrick, calandra@hwhlaw.com
Attorneys for Weintraub Inspections &
Forensic, Inc.

 

CERTIFICATE OF SERVICE

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

through the Florida Courts E-Filing Portal to all parties and/or counsel of record on this 24" day

of December, 2020.

14793500v1

/s/ Andrew I. Holway
Attorney