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

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                                Filing # 118698899 E-Filed 12/23/2020 03:12:01 PM

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

VILLAS AT EMERALD LAKE
HOMEOWNERS ASSOCIATION, INC.,

a Florida not for profit corporation, Case No.: 2020-CA-2942-ON

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
IRRIGATIONS & LANDSCAPING, INC., a
Florida corporation;

SUMMERPARK HOMES, INC., a Florida
corporation; BROWN+COMPANY
ARCHITECTURE, INC., a Florida corporation;

Defendants,DEFENDANT, IMPERIAL BUILDING CORPORATION’S
ANSWER AND AFFIRMATIVE DEFENSES TO THE COMPLAINT

COMES NOW, Defendant, IMPERIAL BUILDING CORPORATION
(“IMPERIAL”), and submits its Answer and Affirmative Defenses to the Complaint, and
alleges:

1. Admitted for jurisdictional purposes only. Otherwise denied.

2. Admitted for jurisdictional purposes only. Otherwise denied.

3. Without knowledge and therefore denied.

4. Without knowledge and therefore denied.

5. As to IMPERIAL, denied. As to all other parties, without knowledge and
therefore denied.

6. It is admitted that jurisdiction and venue are appropriate in this Court.
Otherwise, denied.

7. Denied.

8. Denied as to IMPERIAL. Without knowledge and therefore denied as to
all other parties.

9. Without knowledge and therefore denied.

10. | Without knowledge and therefore denied.

11. | Without knowledge and therefore denied.

12. Without knowledge and therefore denied.

13. | Without knowledge and therefore denied.

14. | Without knowledge and therefore denied.15.

16.

17.

18.

19.

20.

21.

22.

23.

24.

25.

26.

27.

28.

29.

30.

31.

32.

33.

34.

35.

Without knowledge and therefore denied.
Without knowledge and therefore denied.
Without knowledge and therefore denied.
Without knowledge and therefore denied.
Without knowledge and therefore denied.
Without knowledge and therefore denied.
Without knowledge and therefore denied.
Without knowledge and therefore denied.
Without knowledge and therefore denied.
Admitted.

Denied as phrased.

Without knowledge and therefore denied.
Without knowledge and therefore denied.
Without knowledge and therefore denied.
Without knowledge and therefore denied.
Without knowledge and therefore denied.
Without knowledge and therefore denied.
Without knowledge and therefore denied.
Without knowledge and therefore denied.
Without knowledge and therefore denied.

Without knowledge and therefore denied.36. Denied as phrased as to IMPERIAL. Without knowledge and therefore
denied as to all other parties.

37. | Without knowledge and therefore denied.

38. Denied.

39. | Without knowledge and therefore denied.

40. | Without knowledge and therefore denied.

41. Without knowledge and therefore denied.

42. Without knowledge and therefore denied.

43. | Without knowledge and therefore denied.

44. Without knowledge and therefore denied.

45. Without knowledge and therefore denied.

46. Without knowledge and therefore denied.

47. Denied as to IMPERIAL. Without knowledge and therefore denied as to
all other parties.

48. Denied as to IMPERIAL. Without knowledge and therefore denied as to
all other parties.

49. (including all subparts) Denied as to IMPERIAL. Without knowledge and
therefore denied as to all other parties.

50. (including all subparts) Denied as to IMPERIAL. Without knowledge and
therefore denied as to all other parties.

51. (including all subparts) Without knowledge and therefore denied.

52. (including all subparts) Without knowledge and therefore denied.53. (including all subparts) Without knowledge and therefore denied.

54. (including all subparts) Denied.

55. (including all subparts) Without knowledge and therefore denied.

56. (including all subparts) Without knowledge and therefore denied.

57. (including all subparts) Without knowledge and therefore denied.

58. (including all subparts) Without knowledge and therefore denied.

59. Denied as to IMPERIAL. Without knowledge and therefore denied as to
all other parties.

60. Denied as to IMPERIAL. Without knowledge and therefore denied as to
all other parties.

61. (including all subparts) Denied as to IMPERIAL. Without knowledge and
therefore denied as to all other parties

62. Denied as to IMPERIAL. Without knowledge and therefore denied as to
all other parties.

63. Denied as to IMPERIAL. Without knowledge and therefore denied as to
all other parties.

64. Denied as to IMPERIAL. Without knowledge and therefore denied as to
all other parties.

COUNTS I- XV
65 — 174 These paragraphs and these counts do not pertain to this Defendant

and therefore no response is required. Should a response be required, denied.COUNT XVI
VIOLATION OF FLORIDA BUILDING CODE
(AGAINST IMPERIAL)
175. IMPERIAL re-alleges and incorporates by reference its responses to
paragraphs 1 — 64 of the Complaint as if fully set forth herein.

176. Denied as phrased.

177. Denied.

178. Denied as phrased.

179. Denied.

180. Denied as phrased.

181. Denied.
182. Denied.
183. Denied.

WHEREFORE, Defendant, IMPERIAL BUILDING CORPORATION requests
the entry of judgment in its favor, that the Plaintiff take nothing by virtue of its
Complaint, that the Court allow IMPERIAL BUILDING CORPORATION to go without
delay, and to award its reasonable costs incurred in connection with this action, and for
such other and further relief as the Court deems to be just and proper.

COUNT XVII
NEGLIGENCE
(AGAINST IMPERIAL)
184. IMPERIAL re-alleges and incorporates by reference its responses to

paragraphs | — 64 of the Complaint as if fully set forth herein.

185. Denied as phrased.186. Denied as phrased.

187. Denied.
188. Denied.
189. Denied.

WHEREFORE, Defendant, IMPERIAL BUILDING CORPORATION requests
the entry of judgment in its favor, that the Plaintiff take nothing by virtue of its
Complaint, that the Court allow IMPERIAL BUILDING CORPORATION to go without
delay, and to award its reasonable costs incurred in connection with this action, and for
such other and further relief as the Court deems to be just and proper.

COUNTS XVIII - XXVII

190-266 These paragraphs and these counts do not pertain to this Defendant

and therefore no response is required. Should a response be required, denied.
AFFIRMATIVE DEFENSES

1, Count XVI fails to state a cause of action for building code violations
because the building code imposes no obligation to “properly fund reserve and operating
accounts,” and does not provide for “incidental and consequential damages,” or
“temporary replacement housing,” or “temporary repair costs,” among others.

2. Count XVII fails to state a cause of action for negligence because the
common law imposes no obligation on subcontractors to “properly fund reserve and
operating accounts,” and does not provide for “incidental and consequential damages,” or

“temporary replacement housing,” or “temporary repair costs,” among others.3. The Complaint fails to allege a sufficient cause of action against
IMPERIAL under § 553.84, Fla. Stat., because it does not allege all the elements
necessary to have a civil cause of action under that statute, including a showing that the
plans were not properly permitted by local authorities or that the subject project failed
any inspections by local authorities.

4, Plaintiff's claims against IMPERIAL under § 553.84, F/a. Stat. are also
legally insufficient because 1) the required building permits were obtained; 2) the local
government or public agency with authority to enforce the Florida Building Code
approved the plans; 3) the construction passed all required inspections under the code;
4) there is no personal injury or damage to property other than the property that is the
subject of the permits, plans and inspections; and 5) IMPERIAL did not know and
should not have known that any violation of the building code existed.

5. Some or all of the claims against IMPERIAL are barred by the applicable
statute of limitations or statute of repose, or alternatively, by the equitable doctrine of
laches.

6. Upon information and belief, Plaintiff failed to satisfy one or more
conditions precedent to recovering against IMPERIAL by failing to provide IMPERIAL
with reasonable pre-suit notice of any actual or threatened claim arising out of the project
described in the Complaint.

7. Upon information and belief, some or all of the damages Plaintiff secks to

attribute to IMPERIAL resulted from force majeure / weather-related events, includinghurricanes, tornadoes, and tropical storms, and not as a result of any alleged negligence,
breach, or code violation by this Defendant.

8. Under §§ 768.31 and 768.81, /’/a. Stat., and the doctrine established in
Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993), judgment should be entered against each
party or person liable on the basis of such party’s or person’s percentage of fault and not
on the basis of joint and several liability, including the Plaintiff and all other Defendants
identified in this action; and IMPERIAL is not responsible for other contractors’ or
subcontractors’ work, including negligently performed work on the project, and/or
breached warranties, or any other aspect of work performed by others on the property.

9. IMPERIAL is entitled to a set-off to the extent of all monies received by or
on behalf of, or payable to, or on behalf of the Plaintiff from any collateral source.

10. IMPERIAL is entitled to a set-off to the extent of all monies received by or
on behalf of, or payable to, or on behalf of the Plaintiff from the proceeds of any
settlements, recoveries or recoupments or setoffs paid or received due to this lawsuit or
one or more of the alleged construction defects at issue in this case.

11. IMPERIAL is also entitled to a set-off for any alleged remediation that has
or will result in the betterment to the subject property(ies) beyond what was called for in
the applicable plans and specifications.

12. To the extent that IMPERIAL performed work on the subject property and
third parties subsequently modified, damaged, or disturbed that work, IMPERIAL is not

liable for any resulting damages.13. Upon information and belief, some or all of the damages alleged against
IMPERIAL were caused, in whole or in part, by a lack of maintenance by Plaintiff and/or
its members or predecessors.

14. Some or all of the damages that Plaintiff seeks from IMPERIAL resulted
from a failure on the part of the Plaintiff, its members or its predecessors to mitigate its
alleged damages by properly maintaining the subject property and funding reserve and
operating accounts, and failing to timely and properly repair the damages attributed to
and sought from IMPERIAL in the Third-Party Complaint.

15. To the extent that any alleged defects were included in IMPERIAL’s scope
of work, which is denied, said defects resulted from the actions or inactions of others
during construction, or from those of the project’s architect(s) and/or engineers, and not
from any action or omission on the part of IMPERIAL.

16. Upon information and belief, some or all of the claims involving
IMPERIAL’s scope of work are barred by the doctrines of waiver and estoppel in that
Plaintiff, its members or its predecessors failed to timely notify IMPERIAL of any such
claims or alleged defects but instead retained other parties to make repairs; or
alternatively, Plaintiff or its members or predecessors knowingly permitted the subject
property(ies) to go unrepaired for an unreasonable period of time after becoming aware
of the alleged defects.

17. All claims against CROWN are barred or diminished by the Economic
Waste Doctrine as set forth in Grossman Holdings, Ltd. v. Hourihan, 414 So, 2d 1037

(Fla. 1982).

10CERTIFICATE OF SERVICE

THEREBY CERTIFY that a true and correct copy of the foregoing has been

furnished this 23"! of December, 2020 via electronic mail to:

Phillip E. Joseph, Esquire
Evan J. Small, Esquire
Jeffrey A. Widelitz, Esquire
Nicholas B. Vargo, Esquire
Ball Janik, LLP

201 E. Pine Street, Suite 600
Orlando, FL 32801
pjoseph@balljanik.com
esmall@balljanik.com
jwidelitz@pballjanik.com
nvargo@balljanik.com
ypalmer@balljanik.com
mwise@balljanik.com
orlandodocket@balljanik.com

Lannie D. Hough Jr., Esquire
Robin H. Leavengood, Esquire
Carlton Fields, P.A.

4221 W. Boy Scout Boulevard
Tampa, FL 33607-5780
lhough@carltonfields.com
nbonilla@carltonfields.com
rleavengood@carltonfields.com
brosa@carltonfields.com
vwilliams@carltonfields.com
Counsel for Royal Oak Homes, LLC

Counsel for Plaintiff, Villas at Emerald

Lake Homeowners Association, Inc.

WY Thamtr AR. Kaddourt, Jr.

 

THAMIR A.R. KADDOURL JR.

Florida Bar No.: 0186600

PENELOPE T. ROWLETT

Florida Bar No.: 0120979

BETH ANN TOBEY

Florida Bar No.: 1008538

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

3220 West Cypress Street

Tampa, Florida 33607

(813) 879-5752 Tel; (813) 879-5707 Facsimile
THAMIR.KADDOURI@TAMPALAW.ORG;
SERVICE@TAMPALAW.ORG;

Counsel for Defendant, Imperial Building
Corporation

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