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Filing # 117162132 E-Filed 11/23/2020 05:35:46 PM
THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT IN AND
FOR OSCEOLA COUNTY, FLORIDA
VILLAS AT EMERALD LAKE HOMEOWNERS | Case No.:
ASSOCIATION, INC., a Florida not for profit
corporation,
Plaintiff,
Vv.
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.
COMPLAINT AND DEMAND FOR JURY TRIAL
Plaintiff VILLAS AT EMERALD LAKE HOMEOWNERS ASSOCIATION, INC. (the
“Association”), by and through undersigned counsel, hereby sues Defendants ROYAL OAK
HOMES, LLC (“ROYAL OAK”); ADVANCED WRAPPING AND CONCRETE SOLUTIONS
OF CENTRAL FLORIDA, INC. (“ADVANCED”); DON KING’S CONCRETE, INC. (“DONKING”); HUGH MACDONALD CONSTRUCTION, INC. (“HUGH MACDONALD”);
IMPERIAL BUILDING CORPORATION (“IMPERIAL”); PREMIER PLASTERING OF
CENTRAL FLORIDA, INC. N/K/A TGK STUCCO, INC. (“PREMIER”); WEATHERMASTER
BUILDING PRODUCTS, INC. (“WEATHERMASTER”); WEINTRAUB INSPECTIONS &
FORENSICS, INC. N/K/A WEINTRAUB ENGINEERING AND INSPECTIONS, INC.
(“WEINTRAUB”); THE DIMILLO GROUP, LLC (“DIMILLO”); WOLF’S IRRIGATION &
LANDSCAPING, INC. (“WOLF”); SUMMERPARK HOMES, INC. (“SUMMERPARK”);
BROWN+COMPANY ARCHITECTURE, INC. (“BROWN”) and seeks trial by jury. In support
thereof, the Association alleges as follows:
NATURE OF THE CASE
1. This is an action for damages arising from the negligent and defective development,
design, construction, and sale of the townhomes and common areas at Villas at Emerald Lake in
Kissimmee, Osceola County, Florida (the “Community” or the “Townhomes”), caused by the
Defendants.
JURISDICTION AND VENUE
2. This is an action for monetary damages in excess of $30,000.00, exclusive of
interest, costs, and attorney’s fees, and this Court otherwise has jurisdiction over the subject matter
hereof.
3. The subject property of this action is located in Osceola County, Florida.
4. The Association has an office for the transaction of its usual and customary business
in Osceola County, Florida.
5. At all times material, the Defendants conducted business or resided in Osceola
County, Florida.6. The acts and/or omissions giving rise to this Complaint took place in Osceola
County, Florida and each cause of action occurred in Osceola County, Florida. Therefore,
jurisdiction and venue are proper in this county.
7. All conditions precedent to bringing this action have occurred or have been waived,
including, but not limited to, the requirements of Chapter 558, Fla. Stat.
8. The alleged defects herein have been examined and certified by an appropriately
licensed Florida engineer, design professional, contractor, or otherwise licensed Florida individual
or entity.
PARTIES
9. The Association is a Florida non-profit corporation and has an office for the
transaction of its usual and customary business in Osceola County, Florida.
10. The Association is a corporation organized and existing under Chapter 720, Fla.
Stat., to provide a corporate entity for the operation of the Community in Osceola County, Florida.
11. The Association brings this action in its own right and as representative of the
Community members pursuant to § 720.303(1), Fla. Stat, and Fla. R. Civ. P. 1.221. The
Association is the lawful, adequate, and appropriate representative of the unit owners comprising
the Community and all common areas, improvements, matters of common interest, and
appurtenances incident thereto.
12. Upon information and belief, ROYAL OAK is a Florida limited liability company
with its principle place of business located at 4900 North Scottsdale Road, Suite 2000, Scottsdale,
Arizona 85251.
13. Upon information and belief, ROYAL OAK served as the developer and as the
licensed general contractor, as that term is defined in § 489.105(3)(a), Fla. Stat., for theconstruction of seventy-seven (77) units within the Community and common areas.
14. Upon information and belief, DIMILLO is a Florida limited liability company with
its principle place of business located at 1355 S. International Parkway, Suite 2461, Lake Mary,
Florida 32746.
15. Upon all information and belief, DIMILLO served as the developer for the
construction of twelve (12) units within the Community and common areas.
16. Upon information and belief, SUMMERPARK is a Florida profit corporation with
its principle place of business located at 279 Chiswell Place,
Lake Mary, Florida 32746.
17. Upon all information and belief, SUMMERPARK served as the developer and
licensed general contractor, as that term is defined in § 489.105(3)(a), Fla. Stat., for the
construction of twelve (12) units within the Community and common areas.
18. | Upon information and belief, ADVANCED is a Florida profit corporation with its
principle place of business located at 3435 Ravencreek Lane, Oviedo, Florida 32766.
19. Upon information and belief, ADVANCED was responsible for all aspects of its
scope of work including, but not limited to, providing services and/or materials with respect to the
house-wrap and weather resistant barrier of the Townhomes developed by ROYAL OAK.
20. Upon information and belief, DON KING is a Florida profit corporation with its
principle place of business located at 1707 Kennedy Point, Oviedo, Florida 32765.
21. Upon information and belief, DON KING was responsible for all aspects of its
scope of work including, but not limited to, providing services and/or materials with respect to the
concrete, slabs, and masonry of the Townhomes developed by ROYAL OAK.
22. Upon information and belief, HUGH MACDONALD is a Florida profitcorporation with its principle place of business located at 10825 Tom Folsom Road, Suite A,
Thonotosassa, Florida 33592.
23. Upon all information and belief, HUGH MACDONALD was responsible for all
aspects of its scope of work including, but not limited to, services and/or materials with respect to
the roofing of the Townhomes developed by ROYAL OAK.
24. Upon information and belief, IMPERIAL is a Florida profit corporation with its
principle place of business located at 919 Outer Road, Suite B, Orlando, Florida 33592.
25. Upon all information and belief, IMPERIAL was responsible for all aspects of its
scope of work including, but not limited to, services and/or materials with respect to the carpentry
and framing of the Townhomes developed by ROYAL OAK.
26. Upon information and belief, PREMIER is a Florida profit corporation with its
principle place of business located at 2331 Pine Meadows Place, Chuluota, Florida 32766.
27. Upon all information and belief, PREMIER was responsible for all aspects of its
scope of work including, but not limited to, services and/or materials with respect to the stucco of
the Townhomes developed by ROYAL OAK.
28. Upon information and belief, WEATHERMASTER is a Florida profit corporation
with its principle place of business located at 112 Central Park Place, Sanford, Florida 32771.
29. Upon all information and belief, WEATHERMASTER was responsible for all
aspects of its scope of work including, but not limited to, services and/or materials with respect to
the windows of the Townhomes developed by ROYAL OAK.
30. Upon information and belief, WOLF is a Florida profit corporation with its
principle place of business located at 4275 Albritton Road, St. Cloud, Florida 34772.
31. Uponall information and belief, WOLF was responsible for all aspects of its scopeof work including, but not limited to, services and/or materials with respect to the landscaping and
irrigation of the Townhomes developed by ROY AL OAK.
32. Upon information and belief, WEINTRAUB is a Florida profit corporation with its
principle place of business located at 3868 Sun City Center Blvd., Sun City Center, Florida 33573.
33. Upon all information and belief, WEINTRAUB was responsible for all aspects of
its scope of work including, but not limited to, services and/or materials with respect to the
inspections of the house-wrap, building paper/lath, stucco installation, and final inspections of the
Townhomes developed by ROYAL OAK.
34. Upon information and belief, BROWN is a Florida profit corporation with its
principle place of business located at 503 Berwick Drive, Winter Park, Florida 32792.
35. Upon all information and belief, BROWN was responsible for all aspects of its
scope of work including, but not limited to, services and/or materials with respect to the design of
the Townhomes developed by ROYAL OAK.
36. Upon information and belief, ADVANCED, DON KING, HUGH MACDONALD,
IMPERIAL, PREMIER, WEATHERMASTER, and WOLF served as subcontractors for ROYAL
OAK in the construction of the townhomes developed by ROYAL OAK and will collectively be
referred to as “ROH Subcontractors.”
37. Upon information and belief, WEINTRAUB served as the inspector and BROWN
served as the architect for ROYAL OAK in the construction of the townhomes developed by
ROYAL OAK and will collectively be referred to as the “ROH Design Professionals.”
38. As a result of the Defendants’ conduct, the Association has been required to retain
the services of the undersigned counsel to represent its interests in this action and is obligated to
pay a reasonable fee for their services.FACTS COMMON TO ALL CLAIMS FOR RELIEF
39. | The Community consists of twelve (12) residential buildings with approximately
89 residential units, plus a clubhouse and other common areas.
40. Upon information and belief, twelve (12) units of the Community were developed
and constructed by DIMILLO and SUMMERPARK (“TDG Townhomes”).!
41. | Upon information and belief, seventy-seven (77) units of the Community were
developed and constructed by ROYAL OAK (“ROH Townhomes”).”
42. The Association’s members are collectively the fee-simple owners of the
Townhomes, the common areas, and the real property, which comprise the Community.
43. The Association is responsible for the maintenance and repair of the common areas
of the Community, including, but not limited to, the roofs, windows, exterior walls, landscaping,
and irrigation.
44. The Association has the duty to maintain the Community by making all proper
expenditures, where possible, for the upkeep, maintenance, and management of the Community.
45. Upon information and belief, ROYAL OAK, DIMILLO, and SUMMERPARK
controlled the Association before the unit owners, other than the developer, were able to elect a
majority of the board members of the Association.
46. The causes of action alleged herein concern matters of common interest to the
Association’s members, including, but not limited to, matters affecting the Townhomes and all
common elements of the Community.
47. Defendants undertook to construct the Townhomes and common areas for sale to,
' DIMILLIO and SUMMERPARK developed and constructed Units 150-161.
? ROYAL OAK developed and constructed Units 110-149 and 162-197.
7and use of, the general public, including the Association, its members, and their predecessors in
interest.
48. As provided further in paragraphs 49-58, and elsewhere herein, upon information
and belief, Defendants failed to reasonably and adequately design, develop, and/or construct the
Townhomes and commons areas in accordance with the applicable Florida Building Code,
manufacturers’ recommendations, permitted plans and specifications, and the industry standards.
49. Asa direct result of the collective and individual failures on the part of ROYAL
OAK, ROH Subcontractors and ROH Design Professionals, the Association and its members have
suffered and continue to suffer damages proximately caused by defects and deficiencies in the
construction of the Community, including, but not limited to, the following defects in the ROH
Townhomes:
A. Roofs:
a. Missing/insufficient 4-inch cement over edge flashing flange;
b. Shingles not adhered or cemented to edge flashing;
c. Shingles do not overhang edge flashing;
d. Shingles do not overhang eave;
e. Improper starter shingle installation;
f. Underlayment short of edge metal;
g. Improper number/spacing of shingle fasteners;
h. Overdriven shingle fasteners;
i. Unsealed/missing diverter at confined rake termination; and
j. Water intrusion through roof and related components.
B. Windowsa. Windows failed water testing;
b. Improperly installed sealant under window fins;
c. Damaged window fin;
d. Incorrect type of window installed; and
e. Water intrusion through the windows and related components.
C. Walls — Stucco
a. Stucco backing reverse lapped under window sill;
b. Insufficient length of wire lath staples;
c. Lack of isolation/improper application of sealant around window
perimeter;
d. Paper backed lath not lapped paper-to-paper/lath-to-lath;
e. Improper embedment of plaster into lath;
f. Improper installation of stucco control joint accessories;
g. Improper stucco application;
h. Lack of weep screed at wood/masonry transition;
i. Improperly installed weep screeds/stucco stop;
j. Inadequate installation of flashing around window perimeter;
k. Lack of flashing around window perimeter;
l. Lack of flashing at wall penetration;
m. Unsealed penetration;
n. Reverse lap of stucco backing;
o. Trapped moisture between stucco backing and building wrap;
p. Excessive stapling through window flashing;q. Improper installation of building wrap;
r. Improper use of J-mold accessory as stucco weep;
s. Inadequate separation between stucco and dissimilar materials; and
t. Water penetrating through stucco over masonry and framed walls.
D. Walls — Concrete Block
a. Lack of isolation/improper application of primary sealant around
window perimeter;
b. Improper application of secondary sealant around window;
c. Stucco improperly bonded to substrate;
d. Lack of stucco control joints;
e. Improper stucco application; and
f. Water penetrating through stucco over masonry and framed walls.
E. Floors
a. Uncontrolled cracking of concrete slab.
F. Structural
a. Improper shear wall edge nailing;
b. Improper shear wall nail sizes;
c. Sill nailing missing or misses edge blocking;
d. Undersized sill nails;
e. Missing hurricane strap;
f. Missing floor boundary nailing; and
g. Untreated wood in contact with concrete masonry.
50. Asa direct result of the collective and individual failures on the part of DIMILLOand SUMMERPARK, the Association and its members have suffered and continue to suffer
damages proximately caused by defects and deficiencies in the construction of the Community,
including, but not limited to, the following defects in the TDG Townhomes:
A. Roofs:
a. Missing/insufficient 4-inch cement over edge flashing flange;
b. Shingles not adhered or cemented to edge flashing;
c. Shingles do not overhang eave;
d. Improper starter shingle installation;
e. Improper number/spacing of shingle fasteners; and
f. Water intrusion through roof and related components.
B. Windows
a. Improper window fastening;
b. Improper window flashing; and
c. Water intrusion through the windows and related components.
C. Walls — Stucco Over Wood Frame
a. Stucco backing reverse lapped under window sill;
b. Insufficient length of wire lath staples;
c. Lack of isolation/improper application of sealant around window
perimeter;
d. Improper embedment of plaster into lath;
e. Improper stucco application;
f. Improperly installed weep screeds/stucco stop;
g. Inadequate installation of flashing around window perimeter;m.
n.
Lack of flashing at wall penetration;
Reverse lap of stucco backing;
Trapped moisture between stucco backing and building wrap;
Improper installation of building wrap;
Improper use of J-mold accessory as stucco weep;
Inadequate separation between stucco and dissimilar materials; and
Water penetrating through stucco over masonry and framed walls.
D. Walls — Concrete Block
Lack of isolation/improper application of primary sealant around
window perimeter;
Improper application of secondary sealant around window;
Stucco improperly bonded to substrate;
Lack of stucco control joints;
Improper stucco application; and
Water penetrating through stucco over masonry and framed walls.
G. Structural
h.
Improper shear wall edge nailing;
Improper shear wall nail sizes;
Sill nailing missing or misses edge blocking;
Undersized sill nails;
Missing hurricane strap;
. Missing floor boundary nailing; and
Untreated wood in contact with concrete masonry.E. Sitework
a. Improper protection of wall reinforcement; and
b. Inadequate / lack of proper drainage adjacent exterior wall.
51. Defects and deficiencies associated with ADVANCED’s scope of work include,
but are not limited to, the following:
a. Improper installation of building wrap.
52. Defects and deficiencies associated with DON KING’s scope of work include, but
are not limited to, the following:
a. Uncontrolled cracking of concrete slab.
53. Defects and deficiencies associated with HUGH MACDONALD’s scope of work
include, but are not limited to, the following:
a. Missing/insufficient 4-inch cement over edge flashing flange;
b. Shingles not adhered or cemented to edge flashing;
c. Shingles do not overhang edge flashing;
d. Shingles do not overhang eave;
e. Improper starter shingle installation;
f. Underlayment short of edge metal;
g. Improper number/spacing of shingle fasteners;
h. Overdriven shingle fasteners;
i. Unsealed/missing diverter at confined rake termination; and
j. Water intrusion through roof and related components.
54. Defects and deficiencies associated with IMPERIAL’s scope of work include, but
are not limited to, the following:g.
Improper shear wall edge nailing;
Improper shear wall nail sizes;
Sill nailing missing or misses edge blocking;
Undersized sill nails;
Missing hurricane strap;
Missing floor boundary nailing; and
Untreated wood in contact with concrete masonry.
55. Defects and deficiencies associated with PREMIER’s scope of work include, but
are not limited to, the following:
a.
b.
Stucco backing reverse lapped under window sill;
Insufficient length of wire lath staples;
Lack of isolation/improper application of sealant around window
perimeter;
Paper backed lath not lapped paper-to-paper/lath-to-lath;
Improper embedment of plaster into lath;
Improper installation of stucco control joint accessories;
Improper stucco application;
Lack of weep screed at wood/masonry transition;
Improperly installed weep screeds/stucco stop;
Inadequate installation of flashing around window perimeter;
Lack of flashing around window perimeter;
Lack of flashing at wall penetration;
m. Unsealed penetration;Ww.
XxX.
Reverse lap of stucco backing;
Trapped moisture between stucco backing and building wrap;
Excessive stapling through window flashing;
Improper installation of building wrap;
Improper use of J-mold accessory as stucco weep;
Inadequate separation between stucco and dissimilar materials;
Water penetrating through stucco over masonry and framed walls;
Lack of isolation/improper application of primary sealant around
window perimeter;
Improper application of secondary sealant around window;
Stucco improperly bonded to substrate; and
Lack of stucco control joints.
56. Defects and deficiencies associated with WEATHERMASTER’s scope of work
include, but are not limited to, the following:
a.
b.
c
d.
G
f.
Windows failed water testing;
Improperly installed sealant under window fins;
Inadequate installation of flashing around window perimeter;
Damaged window fin;
Incorrect type of window installed; and
Water penetration through the windows and related components.
57. Defects and deficiencies associated with WOLF’s scope of work include, but are
not limited to, the following:
a.
Insufficient/lack of proper drainage adjacent exterior wall.58. Defects and deficiencies associated with WEINTRAUB’s scope of work include,
but are not limited to, the following:
a. Improper/insufficient inspection of house wrap;
b. Improper/insufficient inspection of building paper and lath;
c. Improper/insufficient inspection of stucco installation; and
d. Improper/insufficient final inspection.
59. The defects and deficiencies identified in paragraphs 49-58 are a violation of
design, building, and construction practices; industry standards, manufacturer requirements,
applicable plans and specifications, and various governmental codes and restrictions, including,
without limitation, the Florida Building Code, as in effect at the time the Townhomes were
constructed, as well as, at the time it was inspected and sold to the public for residential use.
60. The aggregate effect of the defects alleged in paragraphs 49-58, and elsewhere,
have caused, and will continue to cause, damage, including, community-wide water intrusion
resulting in damage to other property and works of other trades, such as roofs, building envelope,
structural framing, interior and exterior finishes, and further risk of future damages throughout the
Townhomes.
61. Asa result of the defects identified in paragraphs 49-58, the Association and its
members have been damaged and injured. Damages include, but are not limited to, the following:
i. All costs to investigate and develop a scope of repair to the Townhomes;
ii. All costs to repair the defects and the resulting damage to the Townhomes;
iii. All costs to repair defects that may cause future resulting damage;
iv. Loss of use, storage, and temporary housing costs caused by the defects and
required during repairs;v. Diminution in value of the Townhomes;
vi. Costs of temporary repairs;
vii. Incidental and consequential damages caused by the defects;
viii. All costs incurred to prosecute this lawsuit; and
ix. Prejudgment interest.
62. The defects and deficiencies identified in paragraphs 49-58 were not readily
discoverable by the Association or its members through reasonable inspection at the time of
purchase, and the Association and its members became aware of the defects and deficiencies only
after recent inspections performed by expert consultants.
63. In compliance with § 558.004, Fla. Stat., the Association served upon Defendants
written notices (the “558 Notices”), including statements that the notice was being given to satisfy
the requirements of Ch. 558, Fla. Stat., and specifying in reasonable detail the common defects
and damages and injuries to the Townhomes and common areas that are the subject of the claims,
and describing in reasonable detail the common causes of the common defects to the extent known,
the nature and extent of the damages and injuries resulting from the defects to the extent known,
and the location of each defect to the extent known. A Florida certified design professional and/or
engineer examined and certified the defects as alleged in the 558 Notices and herein.
64. The 558 Notices were served to Defendants on behalf of the Association, in
accordance with the scope of its duties pursuant to Chapter 720, Fla. Stat.
COUNT I- NEGLIGENCE AND VICARIOUS LIABILITY
(against ROYAL OAK)
65. The Association re-alleges paragraphs 1-64.
66. As general contractor and developer of the ROH Townhomes and common areas,
ROYAL OAK is responsible for all aspects of the construction of the ROH Townhomes and
17common areas, including, but not limited to, exercising reasonable care in developing and
constructing the ROH Townhomes and common areas in compliance with the permitted plans and
specifications, the Florida Building Code, industry standards, and manufacturers’ recommendation
and in such a way so as to not damage other property.
67. As the general contractor and developer, ROYAL OAK owed a non-delegable duty
to the Association and its members to exercise reasonable care in constructing the ROH
Townhomes and common areas and in compliance with the permitted plans and specifications, the
Florida Building Code, industry standards, and manufacturers’ recommendation and in such a way
so to not damage other property.
68. ROYAL OAK breached its collective and individual duty by negligently
developing, constructing, inspecting, supervising, certifying, and approving the construction of the
ROH Townhomes and the common areas including, but not limited to, those defective conditions
described in paragraph 49, thereby resulting in damages to the ROH Townhomes and the common
areas, including, but not limited to, water damage, property damage, and damages to the work and
property of other persons or entities involved in the construction of the ROH Townhomes and
common areas, necessitating repairs to the resulting damage.
69. Further, as the general contractor for the construction of the ROH Townhomes,
ROYAL OAK is vicariously responsible for the negligent construction performed by its
subcontractors utilized in the construction of the ROH Townhomes.
70. Asa direct and proximate result of ROYAL OAK’s breach of the duties identified
in this Count I, the Association has been and will be required to expend large sums of money for
the repair and maintenance of the ROH Townhomes and common areas and for damages caused
by the defects and deficiencies, as alleged in paragraphs 60 and 61. Damages, in an amount to bedetermined at trial, are in excess of $30,000.00 (Thirty Thousand Dollars) and continuing.
WHEREFORE, the Association demands judgment against ROYAL OAK for damages
including, but not limited to, the cost of repairing the construction deficiencies; the resulting
damages from the construction deficiencies; the cost to properly fund reserve and operating
accounts; the incidental and consequential damages caused thereby, including, but not limited to,
loss of use and temporary replacement housing during repairs, temporary repair costs, and
diminution in value; costs incurred in the prosecution of this lawsuit; pre-judgment interest; trial
by jury; and for any additional relief this Court deems just and proper.
COUNT Il - BREACH OF FLORIDA BUILDING CODE
(against ROYAL OAK)
71. The Association re-alleges paragraphs 1-64 and 66-70.
72. | ROYAL OAK served as the developer and general contractor for the construction
of the ROH Townhomes and common areas and thus has a responsibility to prevent violations of
the Florida Building Code.
73. As the entity responsible for obtaining and pulling the permits for the construction
of the ROH Townhomes and common areas, ROYAL OAK owed the Association, and its
members, a non-delegable duty to comply with the Florida Building Code.
74. ROYAL OAK actively participated in the construction of the ROH Townhomes
and the common areas, directly supervised and influenced the manner in which all of the work was
performed, and/or negligently created and/or negligently approved conditions that were in
violation of the Florida Building Code, and as such committed violations of the Florida Building
Code, thereby violating § 553.84, Fla. Stat.
75. | ROYAL OAK knew or should have known that the building code violations existed
at the ROH Townhomes and common areas and breached the Florida Building Code by causing
19the site defects and deficiencies, as alleged in paragraph 49.
76. Asa direct and proximate result of ROYAL OAK’s violation(s) of § 553.84, Fla.
Stat., the Association and its members suffered damages, as alleged in paragraphs 60 and 61,
including, but not limited to, property damage to the ROH Townhomes and common areas, water
damage, and damages to the work and property of other persons or entities, including, but not
limited to, those involved in the construction of the ROH Townhomes and common areas,
necessitating repairs to the resulting damage, in addition to the cost to repair the building code
violations.
77. Asa direct and proximate result of ROYAL OAK’s violation of § 553.84, Fla. Stat.,
the Association has been and will be required to expend large sums of money for the repair of the
ROH Townhomes and common areas and for resulting damages caused by the defects and
deficiencies at the ROH Townhomes, including, but not limited to, those conditions described
herein, and to repair the building code violations, as alleged in paragraph 61.
WHEREFORE, the Association demands judgment against ROYAL OAK for damages
including, but not limited to, the cost of repairing the construction deficiencies; the resulting
damages from the construction deficiencies; the cost to properly fund reserve and operating
accounts; the incidental and consequential damages caused thereby, including, but not limited to,
loss of use and temporary replacement housing during repairs, temporary repair costs, and
diminution in value; costs incurred in the prosecution of this lawsuit; pre-judgment interest; trial
by jury; and for any additional relief this Court deems just and proper.
COUNT II - BREACH OF IMPLIED WARRANTIES
(against ROYAL OAK)
78. The Association re-alleges paragraphs 1-64, 66-70, and 72-77.
2079. As the developer and general contractor of the ROH Townhomes and common
areas, ROYAL OAK impliedly warranted to the Association and its members that the ROH
Townhomes and common areas were designed and constructed free from defect or deficiency in
materials or workmanship and in accordance with the plans and specifications filed as a matter of
public record, the applicable building codes and all applicable local and national codes, ordinances
and industry standards, and good design, engineering, and construction practices. These implied
warranties are those generally described as implied warranties of fitness, merchantability,
habitability, and/or workmanlike construction.
80. The Association and its members relied upon the warranties, skill, and judgment
from ROYAL OAK to ensure the construction of the ROH Townhomes was free from defect or
deficiency in materials or workmanship and in accordance with the plans and specifications filed
as a matter of public record, the applicable building codes, ordinances and industry standards, and
good design, engineering, and construction practices and free from water intrusion and related
damages.
81. ROYAL OAK breached the implied warranties by negligently constructing the
ROH Townhomes as set forth in paragraph 49, and for failing to remedy same.
82. The aggregate effect of the defects and deficiencies as alleged in paragraph 49 has
led to community-wide water intrusion damages and other damages at the ROH Townhomes and
common areas.
83. The existence or cause of the defects and deficiencies, and the damages caused
thereby, are not of the type that would reasonably be recognizable by persons who lack special
knowledge or training, or they are hidden by building components or finishes, and they are latent
defects and deficiencies to the Association and its members who, in the exercise of due diligence,
21did not discover the existence or cause of the defects and deficiencies until after the purchase and
occupancy of the units in the ROH Townhomes.
84. As a proximate cause of ROYAL OAK’s conduct and omissions, the Association
and its members have and continue to suffer damages, as alleged in paragraphs 60 and 61, which
include, without limitation, the cost to repair the defects and deficiencies in the ROH Townhomes,
which are now and will continue to pose a threat to the health, safety, and welfare of the
Association and its members, their guests, and the general public until such repairs are effectuated,
as well as damages incident to, and consequences of ROYAL OAK’s breach. Damages, in an
amount to be determined at trial, are in excess of $30,000.00 and continuing.
85. As a direct and proximate result of ROYAL OAK’s breach of the warranties
identified in this Count III, the Association through assessment of its members has expended and
will be required to expend additional large sums of money to remedy the defects and deficiencies,
and to pay consequential damages to or on behalf of its members, as alleged in paragraph 61.
86. Asa result of ROYAL OAK’s breach of implied warranties, the Association has
been compelled to retain the services of attorneys to comply with statutory requirements prior to
litigation, to institute and prosecute these proceedings, and to retain expert consultants and
witnesses as reasonably necessary to prove its case.
WHEREFORE, the Association demands judgment against ROYAL OAK for damages
including, but not limited to, the cost of repairing the construction deficiencies; the resulting
damages from the construction deficiencies; the cost to properly fund reserve and operating
accounts; the incidental and consequential damages caused thereby, including, but not limited to,
loss of use and temporary replacement housing during repairs, temporary repair costs, and
diminution in value; costs incurred in the prosecution of this lawsuit; pre-judgment interest; trial
22by jury; and for any additional relief this Court deems just and proper.
COUNT IV —- NEGLIGENCE AND VICARIOUS LIABILITY
(against DIMILLO)
87. The Association re-alleges paragraphs 1-64.
88. Asdeveloper of the TDG Townhomes and common areas, DIMILLO is responsible
for all aspects of the construction of the TDG Townhomes and common areas, including, but not
limited to, exercising reasonable care in developing and constructing the TDG Townhomes and
common areas in compliance with the permitted plans and specifications, the Florida Building
Code, industry standards, and manufacturers’ recommendation and in such a way so as to not
damage other property.
89. As the developer, DIMILLO owed a non-delegable duty to the Association and its
members to exercise reasonable care in constructing the TDG Townhomes and common areas and
in compliance with the permitted plans and specifications, the Florida Building Code, industry
standards, and manufacturers’ recommendation and in such a way so to not damage other property.
90. | DIMILLO breached its collective and individual duty by negligently developing,
constructing, inspecting, supervising, certifying, and approving the construction of the TDG
Townhomes and the common areas including, but not limited to, those defective conditions
described in paragraph 50 thereby resulting in damages to the TDG Townhomes and the common
areas, including, but not limited to, water damage, property damage, and damages to the work and
property of other persons or entities involved in the construction of the TDG Townhomes and
common areas, necessitating repairs to the resulting damage.
91. Further, as the developer for the construction of the TDG Townhomes, DIMILLO
is vicariously responsible for the negligent construction performed by its subcontractors utilized
in the construction of the TDG Townhomes.
2392. Asa direct and proximate result of DIMILLO’s breach of the duties identified in
this Count IV, the Association has been and will be required to expend large sums of money for
the repair and maintenance of the TDG Townhomes and common areas and for damages caused
by the defects and deficiencies, as alleged in paragraph 61. Damages, in an amount to be
determined at trial, are in excess of $30,000.00 (Thirty Thousand Dollars) and continuing.
WHEREFORE, the Association demands judgment against DIMILLO for damages
including, but not limited to, the cost of repairing the construction deficiencies; the resulting
damages from the construction deficiencies; the cost to properly fund reserve and operating
accounts; the incidental and consequential damages caused thereby, including, but not limited to,
loss of use and temporary replacement housing during repairs, temporary repair costs, and
diminution in value; costs incurred in the prosecution of this lawsuit; pre-judgment interest; trial
by jury; and for any additional relief this Court deems just and proper.
COUNT V - BREACH OF FLORIDA BUILDING CODE
(against DIMILLO)
93. The Association re-alleges paragraphs 1-64 and 88-92.
94. | DIMILLO served as the developer for the construction of the TDG Townhomes
and common areas and thus has a responsibility to prevent violations of the Florida Building Code.
95. As the entity responsible for obtaining and pulling the permits for the construction
of the TDG Townhomes and common areas, DIMILLO owed the Association, and its members, a
non-delegable duty to comply with the Florida Building Code.
96. | DIMILLO actively participated in the construction of the TDG Townhomes and the
common areas, directly supervised and influenced the manner in which all of the work was
performed, and/or negligently created and/or negligently approved conditions that were in
violation of the Florida Building Code, and as such committed violations of the Florida Building
24Code, thereby violating § 553.84, Fla. Stat.
97. DIMILLO knew or should have known that the building code violations existed at
the TDG Townhomes and common areas and breached the Florida Building Code by causing the
site defects and deficiencies, as alleged in paragraph 50.
98. Asa direct and proximate result of DIMILLO’s violation(s) of § 553.84, Fla. Stat.,
the Association and its members suffered damages, as alleged in paragraphs 60 and 61, including,
but not limited to, property damage to the TDG Townhomes and common areas, water damage,
and damages to the work and property of other persons or entities, including, but not limited to,
those involved in the construction of the TDG Townhomes and common areas, necessitating
repairs to the resulting damage, in addition to the cost to repair the building code violations.
99. As a direct and proximate result of DIMILLO’s violation of § 553.84, Fla. Stat.,
the Association has been and will be required to expend large sums of money for the repair of the
TDG Townhomes and common areas and for resulting damages caused by the defects and
deficiencies at the TDG Townhomes, including, but not limited to, those conditions described
herein, and to repair the building code violations, as alleged in paragraph 61.
WHEREFORE, the Association demands judgment against DIMILLO for damages
including, but not limited to, the cost of repairing the construction deficiencies; the resulting
damages from the construction deficiencies; the cost to properly fund reserve and operating
accounts; the incidental and consequential damages caused thereby, including, but not limited to,
loss of use and temporary replacement housing during repairs, temporary repair costs, and
diminution in value; costs incurred in the prosecution of this lawsuit; pre-judgment interest; trial
by jury; and for any additional relief this Court deems just and proper.
COUNT VI - BREACH OF IMPLIED WARRANTIES
(against DIMILLO)
25100. The Association re-alleges paragraphs 1-64, 88-92, and 94-99.
101. As the developer of the TDG Townhomes and common areas, DIMILLO impliedly
warranted to the Association and its members that the TDG Townhomes and common areas were
designed and constructed free from defect or deficiency in materials or workmanship and in
accordance with the plans and specifications filed as a matter of public record, the applicable
building codes and all applicable local and national codes, ordinances and industry standards, and
good design, engineering, and construction practices. These implied warranties are those generally
described as implied warranties of fitness, merchantability, habitability, and/or workmanlike
construction.
102. The Association and its members relied upon the warranties, skill, and judgment
from DIMILLO to ensure the construction of the TDG Townhomes was free from defect or
deficiency in materials or workmanship and in accordance with the plans and specifications filed
as a matter of public record, the applicable building codes, ordinances and industry standards, and
good design, engineering, and construction practices and free from water intrusion and related
damages.
103. DIMILLO breached the implied warranties by negligently constructing the TDG
Townhomes as set forth in paragraph 50, and for failing to remedy same.
104. The aggregate effect of the defects and deficiencies as alleged in paragraph 50 has
led to community-wide water intrusion damages and other damages at the TDG Townhomes and
common areas.
105. The existence or cause of the defects and deficiencies, and the damages caused
thereby, are not of the type that would reasonably be recognizable by persons who lack special
knowledge or training, or they are hidden by building components or finishes, and they are latent
26defects and deficiencies to the Association and its members who, in the exercise of due diligence,
did not discover the existence or cause of the defects and deficiencies until after the purchase and
occupancy of the units in the TDG Townhomes.
106. As a proximate cause of DIMILLO’s conduct and omissions, the Association and
its members have and continue to suffer damages, as alleged in paragraph 60 and 61, which
include, without limitation, the cost to repair the defects and deficiencies in the TDG Townhomes,
which are now and will continue to pose a threat to the health, safety, and welfare of the
Association and its members, their guests, and the general public until such repairs are effectuated,
as well as damages incident to, and consequences of DIMILLO’s breach. Damages, in an amount
to be determined at trial, are in excess of $30,000.00 and continuing.
107. Asa direct and proximate result of DIMILLO’s breach of the warranties identified
in this Count VI, the Association through assessment of its members has expended and will be
required to expend additional large sums of money to remedy the defects and deficiencies, and to
pay consequential damages to or on behalf of its members, as alleged in paragraph 61.
108. Asa result of DIMILLO’s breach of implied warranties, the Association has been
compelled to retain the services of attorneys to comply with statutory requirements prior to
litigation, to institute and prosecute these proceedings, and to retain expert consultants and
witnesses as reasonably necessary to prove its case.
WHEREFORE, the Association demands judgment against DIMILLO for damages
including, but not limited to, the cost of repairing the construction deficiencies; the resulting
damages from the construction deficiencies; the cost to properly fund reserve and operating
accounts; the incidental and consequential damages caused thereby, including, but not limited to,
loss of use and temporary replacement housing during repairs, temporary repair costs, and
27diminution in value; costs incurred in the prosecution of this lawsuit; pre-judgment interest; trial
by jury; and for any additional relief this Court deems just and proper.
COUNT VII —- NEGLIGENCE AND VICARIOUS LIABILITY
(against SUMMERPARK)
109. The Association re-alleges paragraphs 1-64.
110. As developer and general contractor of the TDG Townhomes and common areas,
SUMMERPARK is responsible for all aspects of the construction of the TDG Townhomes and
common areas, including, but not limited to, exercising reasonable care in developing and
constructing the TDG Townhomes and common areas in compliance with the permitted plans and
specifications, the Florida Building Code, industry standards, and manufacturers’ recommendation
and in such a way so as to not damage other property.
111. As the general contractor, SUMMERPARK owed a non-delegable duty to the
Association and its members to exercise reasonable care in constructing the TDG Townhomes and
common areas and in compliance with the permitted plans and specifications, the Florida Building
Code, industry standards, and manufacturers’ recommendation and in such a way so to not damage
other property.
112. SUMMERPARK breached its collective and individual duty by negligently
developing, constructing, inspecting, supervising, certifying, and approving the construction of the
TDG Townhomes and the common areas including, but not limited to, those defective conditions
described in paragraph 50, thereby resulting in damages to the TDG Townhomes and the common
areas, including, but not limited to, water damage, property damage, and damages to the work and
property of other persons or entities involved in the construction of the TDG Townhomes and
common areas, necessitating repairs to the resulting damage.
113. Further, as the general contractor for the construction of the TDG Townhomes,
28SUMMERPARK is vicariously responsible for the negligent construction performed by its
subcontractors utilized in the construction of the TDG Townhomes.
114. As a direct and proximate result of SUMMERPARK’s breach of the duties
identified in this Count VII, the Association has been and will be required to expend large sums
of money for the repair and maintenance of the TDG Townhomes and common areas and for
damages caused by the defects and deficiencies, as alleged in paragraph 61. Damages, in an amount
to be determined at trial, are in excess of $30,000.00 (Thirty Thousand Dollars) and continuing.
WHEREFORE, the Association demands judgment against SUMMERPARK for
damages including, but not limited to, the cost of repairing the construction deficiencies; the
resulting damages from the construction deficiencies; the cost to properly fund reserve and
operating accounts; the incidental and consequential damages caused thereby, including, but not
limited to, loss of use and temporary replacement housing during repairs, temporary repair costs,
and diminution in value; costs incurred in the prosecution of this lawsuit; pre-judgment interest;
trial by jury; and for any additional relief this Court deems just and proper.
COUNT VIII - BREACH OF FLORIDA BUILDING CODE
(against SUMMERPARK)
115. The Association re-alleges paragraphs 1-64 and 110-114.
116. SUMMERPARK served as the developer and general contractor for the
construction of the TDG Townhomes and common areas and thus has a responsibility to prevent
violations of the Florida Building Code.
117. As the entity responsible for obtaining and pulling the permits for the construction
of the TDG Townhomes and common areas, SUMMERPARK owed the Association, and its
members, a non-delegable duty to comply with the Florida Building Code.
118. SUMMERPARK actively participated in the construction of the TDG Townhomes
29and the common areas, directly supervised and influenced the manner in which all of the work was
performed, and/or negligently created and/or negligently approved conditions that were in
violation of the Florida Building Code, and as such committed violations of the Florida Building
Code, thereby violating § 553.84, Fla. Stat.
119. SUMMERPARK knew or should have known that the building code violations
existed at the TDG Townhomes and common areas and breached the Florida Building Code by
causing the site defects and deficiencies, as alleged in paragraph 50.
120. Asa direct and proximate result of SUMMERPARK’s violation(s) of § 553.84, Fla.
Stat., the Association and its members suffered damages, as alleged in paragraphs 60 and 61,
including, but not limited to, property damage to the TDG Townhomes and common areas, water
damage, and damages to the work and property of other persons or entities, including, but not
limited to, those involved in the construction of the TDG Townhomes and common areas,
necessitating repairs to the resulting damage, in addition to the cost to repair the building code
violations.
121. Asa direct and proximate result of SUMMERPARK’s violation of § 553.84, Fla.
Stat., the Association has been and will be required to expend large sums of money for the repair
of the TDG Townhomes and common areas and for resulting damages caused by the defects and
deficiencies at the TDG Townhomes, including, but not limited to, those conditions described
herein, and to repair the building code violations, as alleged in paragraph 61.
WHEREFORE, the Association demands judgment against SUMMERPARK for
damages including, but not limited to, the cost of repairing the construction deficiencies; the
resulting damages from the construction deficiencies; the cost to properly fund reserve and
operating accounts; the incidental and consequential damages caused thereby, including, but not
30limited to, loss of use and temporary replacement housing during repairs, temporary repair costs,
and diminution in value; costs incurred in the prosecution of this lawsuit; pre-judgment interest;
trial by jury; and for any additional relief this Court deems just and proper.
COUNT IX - BREACH OF IMPLIED WARRANTIES
(against SUMMERPARK)
122. The Association re-alleges paragraphs 1-64, 110-114, and 116-121.
123. As the developer and general contractor of the TDG Townhomes and common
areas, SUMMERPARK impliedly warranted to the Association and its members that the TDG
Townhomes and common areas were designed and constructed free from defect or deficiency in
materials or workmanship and in accordance with the plans and specifications filed as a matter of
public record, the applicable building codes and all applicable local and national codes, ordinances
and industry standards, and good design, engineering, and construction practices. These implied
warranties are those generally described as implied warranties of fitness, merchantability,
habitability, and/or workmanlike construction.
124. The Association and its members relied upon the warranties, skill, and judgment
from SUMMERPARK to ensure the construction of the TDG Townhomes was free from defect
or deficiency in material
Preview
Filing # 117162132 E-Filed 11/23/2020 05:35:46 PM THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA VILLAS AT EMERALD LAKE HOMEOWNERS | Case No.: ASSOCIATION, INC., a Florida not for profit corporation, Plaintiff, Vv. 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. COMPLAINT AND DEMAND FOR JURY TRIAL Plaintiff VILLAS AT EMERALD LAKE HOMEOWNERS ASSOCIATION, INC. (the “Association”), by and through undersigned counsel, hereby sues Defendants ROYAL OAK HOMES, LLC (“ROYAL OAK”); ADVANCED WRAPPING AND CONCRETE SOLUTIONS OF CENTRAL FLORIDA, INC. (“ADVANCED”); DON KING’S CONCRETE, INC. (“DONKING”); HUGH MACDONALD CONSTRUCTION, INC. (“HUGH MACDONALD”); IMPERIAL BUILDING CORPORATION (“IMPERIAL”); PREMIER PLASTERING OF CENTRAL FLORIDA, INC. N/K/A TGK STUCCO, INC. (“PREMIER”); WEATHERMASTER BUILDING PRODUCTS, INC. (“WEATHERMASTER”); WEINTRAUB INSPECTIONS & FORENSICS, INC. N/K/A WEINTRAUB ENGINEERING AND INSPECTIONS, INC. (“WEINTRAUB”); THE DIMILLO GROUP, LLC (“DIMILLO”); WOLF’S IRRIGATION & LANDSCAPING, INC. (“WOLF”); SUMMERPARK HOMES, INC. (“SUMMERPARK”); BROWN+COMPANY ARCHITECTURE, INC. (“BROWN”) and seeks trial by jury. In support thereof, the Association alleges as follows: NATURE OF THE CASE 1. This is an action for damages arising from the negligent and defective development, design, construction, and sale of the townhomes and common areas at Villas at Emerald Lake in Kissimmee, Osceola County, Florida (the “Community” or the “Townhomes”), caused by the Defendants. JURISDICTION AND VENUE 2. This is an action for monetary damages in excess of $30,000.00, exclusive of interest, costs, and attorney’s fees, and this Court otherwise has jurisdiction over the subject matter hereof. 3. The subject property of this action is located in Osceola County, Florida. 4. The Association has an office for the transaction of its usual and customary business in Osceola County, Florida. 5. At all times material, the Defendants conducted business or resided in Osceola County, Florida.6. The acts and/or omissions giving rise to this Complaint took place in Osceola County, Florida and each cause of action occurred in Osceola County, Florida. Therefore, jurisdiction and venue are proper in this county. 7. All conditions precedent to bringing this action have occurred or have been waived, including, but not limited to, the requirements of Chapter 558, Fla. Stat. 8. The alleged defects herein have been examined and certified by an appropriately licensed Florida engineer, design professional, contractor, or otherwise licensed Florida individual or entity. PARTIES 9. The Association is a Florida non-profit corporation and has an office for the transaction of its usual and customary business in Osceola County, Florida. 10. The Association is a corporation organized and existing under Chapter 720, Fla. Stat., to provide a corporate entity for the operation of the Community in Osceola County, Florida. 11. The Association brings this action in its own right and as representative of the Community members pursuant to § 720.303(1), Fla. Stat, and Fla. R. Civ. P. 1.221. The Association is the lawful, adequate, and appropriate representative of the unit owners comprising the Community and all common areas, improvements, matters of common interest, and appurtenances incident thereto. 12. Upon information and belief, ROYAL OAK is a Florida limited liability company with its principle place of business located at 4900 North Scottsdale Road, Suite 2000, Scottsdale, Arizona 85251. 13. Upon information and belief, ROYAL OAK served as the developer and as the licensed general contractor, as that term is defined in § 489.105(3)(a), Fla. Stat., for theconstruction of seventy-seven (77) units within the Community and common areas. 14. Upon information and belief, DIMILLO is a Florida limited liability company with its principle place of business located at 1355 S. International Parkway, Suite 2461, Lake Mary, Florida 32746. 15. Upon all information and belief, DIMILLO served as the developer for the construction of twelve (12) units within the Community and common areas. 16. Upon information and belief, SUMMERPARK is a Florida profit corporation with its principle place of business located at 279 Chiswell Place, Lake Mary, Florida 32746. 17. Upon all information and belief, SUMMERPARK served as the developer and licensed general contractor, as that term is defined in § 489.105(3)(a), Fla. Stat., for the construction of twelve (12) units within the Community and common areas. 18. | Upon information and belief, ADVANCED is a Florida profit corporation with its principle place of business located at 3435 Ravencreek Lane, Oviedo, Florida 32766. 19. Upon information and belief, ADVANCED was responsible for all aspects of its scope of work including, but not limited to, providing services and/or materials with respect to the house-wrap and weather resistant barrier of the Townhomes developed by ROYAL OAK. 20. Upon information and belief, DON KING is a Florida profit corporation with its principle place of business located at 1707 Kennedy Point, Oviedo, Florida 32765. 21. Upon information and belief, DON KING was responsible for all aspects of its scope of work including, but not limited to, providing services and/or materials with respect to the concrete, slabs, and masonry of the Townhomes developed by ROYAL OAK. 22. Upon information and belief, HUGH MACDONALD is a Florida profitcorporation with its principle place of business located at 10825 Tom Folsom Road, Suite A, Thonotosassa, Florida 33592. 23. Upon all information and belief, HUGH MACDONALD was responsible for all aspects of its scope of work including, but not limited to, services and/or materials with respect to the roofing of the Townhomes developed by ROYAL OAK. 24. Upon information and belief, IMPERIAL is a Florida profit corporation with its principle place of business located at 919 Outer Road, Suite B, Orlando, Florida 33592. 25. Upon all information and belief, IMPERIAL was responsible for all aspects of its scope of work including, but not limited to, services and/or materials with respect to the carpentry and framing of the Townhomes developed by ROYAL OAK. 26. Upon information and belief, PREMIER is a Florida profit corporation with its principle place of business located at 2331 Pine Meadows Place, Chuluota, Florida 32766. 27. Upon all information and belief, PREMIER was responsible for all aspects of its scope of work including, but not limited to, services and/or materials with respect to the stucco of the Townhomes developed by ROYAL OAK. 28. Upon information and belief, WEATHERMASTER is a Florida profit corporation with its principle place of business located at 112 Central Park Place, Sanford, Florida 32771. 29. Upon all information and belief, WEATHERMASTER was responsible for all aspects of its scope of work including, but not limited to, services and/or materials with respect to the windows of the Townhomes developed by ROYAL OAK. 30. Upon information and belief, WOLF is a Florida profit corporation with its principle place of business located at 4275 Albritton Road, St. Cloud, Florida 34772. 31. Uponall information and belief, WOLF was responsible for all aspects of its scopeof work including, but not limited to, services and/or materials with respect to the landscaping and irrigation of the Townhomes developed by ROY AL OAK. 32. Upon information and belief, WEINTRAUB is a Florida profit corporation with its principle place of business located at 3868 Sun City Center Blvd., Sun City Center, Florida 33573. 33. Upon all information and belief, WEINTRAUB was responsible for all aspects of its scope of work including, but not limited to, services and/or materials with respect to the inspections of the house-wrap, building paper/lath, stucco installation, and final inspections of the Townhomes developed by ROYAL OAK. 34. Upon information and belief, BROWN is a Florida profit corporation with its principle place of business located at 503 Berwick Drive, Winter Park, Florida 32792. 35. Upon all information and belief, BROWN was responsible for all aspects of its scope of work including, but not limited to, services and/or materials with respect to the design of the Townhomes developed by ROYAL OAK. 36. Upon information and belief, ADVANCED, DON KING, HUGH MACDONALD, IMPERIAL, PREMIER, WEATHERMASTER, and WOLF served as subcontractors for ROYAL OAK in the construction of the townhomes developed by ROYAL OAK and will collectively be referred to as “ROH Subcontractors.” 37. Upon information and belief, WEINTRAUB served as the inspector and BROWN served as the architect for ROYAL OAK in the construction of the townhomes developed by ROYAL OAK and will collectively be referred to as the “ROH Design Professionals.” 38. As a result of the Defendants’ conduct, the Association has been required to retain the services of the undersigned counsel to represent its interests in this action and is obligated to pay a reasonable fee for their services.FACTS COMMON TO ALL CLAIMS FOR RELIEF 39. | The Community consists of twelve (12) residential buildings with approximately 89 residential units, plus a clubhouse and other common areas. 40. Upon information and belief, twelve (12) units of the Community were developed and constructed by DIMILLO and SUMMERPARK (“TDG Townhomes”).! 41. | Upon information and belief, seventy-seven (77) units of the Community were developed and constructed by ROYAL OAK (“ROH Townhomes”).” 42. The Association’s members are collectively the fee-simple owners of the Townhomes, the common areas, and the real property, which comprise the Community. 43. The Association is responsible for the maintenance and repair of the common areas of the Community, including, but not limited to, the roofs, windows, exterior walls, landscaping, and irrigation. 44. The Association has the duty to maintain the Community by making all proper expenditures, where possible, for the upkeep, maintenance, and management of the Community. 45. Upon information and belief, ROYAL OAK, DIMILLO, and SUMMERPARK controlled the Association before the unit owners, other than the developer, were able to elect a majority of the board members of the Association. 46. The causes of action alleged herein concern matters of common interest to the Association’s members, including, but not limited to, matters affecting the Townhomes and all common elements of the Community. 47. Defendants undertook to construct the Townhomes and common areas for sale to, ' DIMILLIO and SUMMERPARK developed and constructed Units 150-161. ? ROYAL OAK developed and constructed Units 110-149 and 162-197. 7and use of, the general public, including the Association, its members, and their predecessors in interest. 48. As provided further in paragraphs 49-58, and elsewhere herein, upon information and belief, Defendants failed to reasonably and adequately design, develop, and/or construct the Townhomes and commons areas in accordance with the applicable Florida Building Code, manufacturers’ recommendations, permitted plans and specifications, and the industry standards. 49. Asa direct result of the collective and individual failures on the part of ROYAL OAK, ROH Subcontractors and ROH Design Professionals, the Association and its members have suffered and continue to suffer damages proximately caused by defects and deficiencies in the construction of the Community, including, but not limited to, the following defects in the ROH Townhomes: A. Roofs: a. Missing/insufficient 4-inch cement over edge flashing flange; b. Shingles not adhered or cemented to edge flashing; c. Shingles do not overhang edge flashing; d. Shingles do not overhang eave; e. Improper starter shingle installation; f. Underlayment short of edge metal; g. Improper number/spacing of shingle fasteners; h. Overdriven shingle fasteners; i. Unsealed/missing diverter at confined rake termination; and j. Water intrusion through roof and related components. B. Windowsa. Windows failed water testing; b. Improperly installed sealant under window fins; c. Damaged window fin; d. Incorrect type of window installed; and e. Water intrusion through the windows and related components. C. Walls — Stucco a. Stucco backing reverse lapped under window sill; b. Insufficient length of wire lath staples; c. Lack of isolation/improper application of sealant around window perimeter; d. Paper backed lath not lapped paper-to-paper/lath-to-lath; e. Improper embedment of plaster into lath; f. Improper installation of stucco control joint accessories; g. Improper stucco application; h. Lack of weep screed at wood/masonry transition; i. Improperly installed weep screeds/stucco stop; j. Inadequate installation of flashing around window perimeter; k. Lack of flashing around window perimeter; l. Lack of flashing at wall penetration; m. Unsealed penetration; n. Reverse lap of stucco backing; o. Trapped moisture between stucco backing and building wrap; p. Excessive stapling through window flashing;q. Improper installation of building wrap; r. Improper use of J-mold accessory as stucco weep; s. Inadequate separation between stucco and dissimilar materials; and t. Water penetrating through stucco over masonry and framed walls. D. Walls — Concrete Block a. Lack of isolation/improper application of primary sealant around window perimeter; b. Improper application of secondary sealant around window; c. Stucco improperly bonded to substrate; d. Lack of stucco control joints; e. Improper stucco application; and f. Water penetrating through stucco over masonry and framed walls. E. Floors a. Uncontrolled cracking of concrete slab. F. Structural a. Improper shear wall edge nailing; b. Improper shear wall nail sizes; c. Sill nailing missing or misses edge blocking; d. Undersized sill nails; e. Missing hurricane strap; f. Missing floor boundary nailing; and g. Untreated wood in contact with concrete masonry. 50. Asa direct result of the collective and individual failures on the part of DIMILLOand SUMMERPARK, the Association and its members have suffered and continue to suffer damages proximately caused by defects and deficiencies in the construction of the Community, including, but not limited to, the following defects in the TDG Townhomes: A. Roofs: a. Missing/insufficient 4-inch cement over edge flashing flange; b. Shingles not adhered or cemented to edge flashing; c. Shingles do not overhang eave; d. Improper starter shingle installation; e. Improper number/spacing of shingle fasteners; and f. Water intrusion through roof and related components. B. Windows a. Improper window fastening; b. Improper window flashing; and c. Water intrusion through the windows and related components. C. Walls — Stucco Over Wood Frame a. Stucco backing reverse lapped under window sill; b. Insufficient length of wire lath staples; c. Lack of isolation/improper application of sealant around window perimeter; d. Improper embedment of plaster into lath; e. Improper stucco application; f. Improperly installed weep screeds/stucco stop; g. Inadequate installation of flashing around window perimeter;m. n. Lack of flashing at wall penetration; Reverse lap of stucco backing; Trapped moisture between stucco backing and building wrap; Improper installation of building wrap; Improper use of J-mold accessory as stucco weep; Inadequate separation between stucco and dissimilar materials; and Water penetrating through stucco over masonry and framed walls. D. Walls — Concrete Block Lack of isolation/improper application of primary sealant around window perimeter; Improper application of secondary sealant around window; Stucco improperly bonded to substrate; Lack of stucco control joints; Improper stucco application; and Water penetrating through stucco over masonry and framed walls. G. Structural h. Improper shear wall edge nailing; Improper shear wall nail sizes; Sill nailing missing or misses edge blocking; Undersized sill nails; Missing hurricane strap; . Missing floor boundary nailing; and Untreated wood in contact with concrete masonry.E. Sitework a. Improper protection of wall reinforcement; and b. Inadequate / lack of proper drainage adjacent exterior wall. 51. Defects and deficiencies associated with ADVANCED’s scope of work include, but are not limited to, the following: a. Improper installation of building wrap. 52. Defects and deficiencies associated with DON KING’s scope of work include, but are not limited to, the following: a. Uncontrolled cracking of concrete slab. 53. Defects and deficiencies associated with HUGH MACDONALD’s scope of work include, but are not limited to, the following: a. Missing/insufficient 4-inch cement over edge flashing flange; b. Shingles not adhered or cemented to edge flashing; c. Shingles do not overhang edge flashing; d. Shingles do not overhang eave; e. Improper starter shingle installation; f. Underlayment short of edge metal; g. Improper number/spacing of shingle fasteners; h. Overdriven shingle fasteners; i. Unsealed/missing diverter at confined rake termination; and j. Water intrusion through roof and related components. 54. Defects and deficiencies associated with IMPERIAL’s scope of work include, but are not limited to, the following:g. Improper shear wall edge nailing; Improper shear wall nail sizes; Sill nailing missing or misses edge blocking; Undersized sill nails; Missing hurricane strap; Missing floor boundary nailing; and Untreated wood in contact with concrete masonry. 55. Defects and deficiencies associated with PREMIER’s scope of work include, but are not limited to, the following: a. b. Stucco backing reverse lapped under window sill; Insufficient length of wire lath staples; Lack of isolation/improper application of sealant around window perimeter; Paper backed lath not lapped paper-to-paper/lath-to-lath; Improper embedment of plaster into lath; Improper installation of stucco control joint accessories; Improper stucco application; Lack of weep screed at wood/masonry transition; Improperly installed weep screeds/stucco stop; Inadequate installation of flashing around window perimeter; Lack of flashing around window perimeter; Lack of flashing at wall penetration; m. Unsealed penetration;Ww. XxX. Reverse lap of stucco backing; Trapped moisture between stucco backing and building wrap; Excessive stapling through window flashing; Improper installation of building wrap; Improper use of J-mold accessory as stucco weep; Inadequate separation between stucco and dissimilar materials; Water penetrating through stucco over masonry and framed walls; Lack of isolation/improper application of primary sealant around window perimeter; Improper application of secondary sealant around window; Stucco improperly bonded to substrate; and Lack of stucco control joints. 56. Defects and deficiencies associated with WEATHERMASTER’s scope of work include, but are not limited to, the following: a. b. c d. G f. Windows failed water testing; Improperly installed sealant under window fins; Inadequate installation of flashing around window perimeter; Damaged window fin; Incorrect type of window installed; and Water penetration through the windows and related components. 57. Defects and deficiencies associated with WOLF’s scope of work include, but are not limited to, the following: a. Insufficient/lack of proper drainage adjacent exterior wall.58. Defects and deficiencies associated with WEINTRAUB’s scope of work include, but are not limited to, the following: a. Improper/insufficient inspection of house wrap; b. Improper/insufficient inspection of building paper and lath; c. Improper/insufficient inspection of stucco installation; and d. Improper/insufficient final inspection. 59. The defects and deficiencies identified in paragraphs 49-58 are a violation of design, building, and construction practices; industry standards, manufacturer requirements, applicable plans and specifications, and various governmental codes and restrictions, including, without limitation, the Florida Building Code, as in effect at the time the Townhomes were constructed, as well as, at the time it was inspected and sold to the public for residential use. 60. The aggregate effect of the defects alleged in paragraphs 49-58, and elsewhere, have caused, and will continue to cause, damage, including, community-wide water intrusion resulting in damage to other property and works of other trades, such as roofs, building envelope, structural framing, interior and exterior finishes, and further risk of future damages throughout the Townhomes. 61. Asa result of the defects identified in paragraphs 49-58, the Association and its members have been damaged and injured. Damages include, but are not limited to, the following: i. All costs to investigate and develop a scope of repair to the Townhomes; ii. All costs to repair the defects and the resulting damage to the Townhomes; iii. All costs to repair defects that may cause future resulting damage; iv. Loss of use, storage, and temporary housing costs caused by the defects and required during repairs;v. Diminution in value of the Townhomes; vi. Costs of temporary repairs; vii. Incidental and consequential damages caused by the defects; viii. All costs incurred to prosecute this lawsuit; and ix. Prejudgment interest. 62. The defects and deficiencies identified in paragraphs 49-58 were not readily discoverable by the Association or its members through reasonable inspection at the time of purchase, and the Association and its members became aware of the defects and deficiencies only after recent inspections performed by expert consultants. 63. In compliance with § 558.004, Fla. Stat., the Association served upon Defendants written notices (the “558 Notices”), including statements that the notice was being given to satisfy the requirements of Ch. 558, Fla. Stat., and specifying in reasonable detail the common defects and damages and injuries to the Townhomes and common areas that are the subject of the claims, and describing in reasonable detail the common causes of the common defects to the extent known, the nature and extent of the damages and injuries resulting from the defects to the extent known, and the location of each defect to the extent known. A Florida certified design professional and/or engineer examined and certified the defects as alleged in the 558 Notices and herein. 64. The 558 Notices were served to Defendants on behalf of the Association, in accordance with the scope of its duties pursuant to Chapter 720, Fla. Stat. COUNT I- NEGLIGENCE AND VICARIOUS LIABILITY (against ROYAL OAK) 65. The Association re-alleges paragraphs 1-64. 66. As general contractor and developer of the ROH Townhomes and common areas, ROYAL OAK is responsible for all aspects of the construction of the ROH Townhomes and 17common areas, including, but not limited to, exercising reasonable care in developing and constructing the ROH Townhomes and common areas in compliance with the permitted plans and specifications, the Florida Building Code, industry standards, and manufacturers’ recommendation and in such a way so as to not damage other property. 67. As the general contractor and developer, ROYAL OAK owed a non-delegable duty to the Association and its members to exercise reasonable care in constructing the ROH Townhomes and common areas and in compliance with the permitted plans and specifications, the Florida Building Code, industry standards, and manufacturers’ recommendation and in such a way so to not damage other property. 68. ROYAL OAK breached its collective and individual duty by negligently developing, constructing, inspecting, supervising, certifying, and approving the construction of the ROH Townhomes and the common areas including, but not limited to, those defective conditions described in paragraph 49, thereby resulting in damages to the ROH Townhomes and the common areas, including, but not limited to, water damage, property damage, and damages to the work and property of other persons or entities involved in the construction of the ROH Townhomes and common areas, necessitating repairs to the resulting damage. 69. Further, as the general contractor for the construction of the ROH Townhomes, ROYAL OAK is vicariously responsible for the negligent construction performed by its subcontractors utilized in the construction of the ROH Townhomes. 70. Asa direct and proximate result of ROYAL OAK’s breach of the duties identified in this Count I, the Association has been and will be required to expend large sums of money for the repair and maintenance of the ROH Townhomes and common areas and for damages caused by the defects and deficiencies, as alleged in paragraphs 60 and 61. Damages, in an amount to bedetermined at trial, are in excess of $30,000.00 (Thirty Thousand Dollars) and continuing. WHEREFORE, the Association demands judgment against ROYAL OAK for damages including, but not limited to, the cost of repairing the construction deficiencies; the resulting damages from the construction deficiencies; the cost to properly fund reserve and operating accounts; the incidental and consequential damages caused thereby, including, but not limited to, loss of use and temporary replacement housing during repairs, temporary repair costs, and diminution in value; costs incurred in the prosecution of this lawsuit; pre-judgment interest; trial by jury; and for any additional relief this Court deems just and proper. COUNT Il - BREACH OF FLORIDA BUILDING CODE (against ROYAL OAK) 71. The Association re-alleges paragraphs 1-64 and 66-70. 72. | ROYAL OAK served as the developer and general contractor for the construction of the ROH Townhomes and common areas and thus has a responsibility to prevent violations of the Florida Building Code. 73. As the entity responsible for obtaining and pulling the permits for the construction of the ROH Townhomes and common areas, ROYAL OAK owed the Association, and its members, a non-delegable duty to comply with the Florida Building Code. 74. ROYAL OAK actively participated in the construction of the ROH Townhomes and the common areas, directly supervised and influenced the manner in which all of the work was performed, and/or negligently created and/or negligently approved conditions that were in violation of the Florida Building Code, and as such committed violations of the Florida Building Code, thereby violating § 553.84, Fla. Stat. 75. | ROYAL OAK knew or should have known that the building code violations existed at the ROH Townhomes and common areas and breached the Florida Building Code by causing 19the site defects and deficiencies, as alleged in paragraph 49. 76. Asa direct and proximate result of ROYAL OAK’s violation(s) of § 553.84, Fla. Stat., the Association and its members suffered damages, as alleged in paragraphs 60 and 61, including, but not limited to, property damage to the ROH Townhomes and common areas, water damage, and damages to the work and property of other persons or entities, including, but not limited to, those involved in the construction of the ROH Townhomes and common areas, necessitating repairs to the resulting damage, in addition to the cost to repair the building code violations. 77. Asa direct and proximate result of ROYAL OAK’s violation of § 553.84, Fla. Stat., the Association has been and will be required to expend large sums of money for the repair of the ROH Townhomes and common areas and for resulting damages caused by the defects and deficiencies at the ROH Townhomes, including, but not limited to, those conditions described herein, and to repair the building code violations, as alleged in paragraph 61. WHEREFORE, the Association demands judgment against ROYAL OAK for damages including, but not limited to, the cost of repairing the construction deficiencies; the resulting damages from the construction deficiencies; the cost to properly fund reserve and operating accounts; the incidental and consequential damages caused thereby, including, but not limited to, loss of use and temporary replacement housing during repairs, temporary repair costs, and diminution in value; costs incurred in the prosecution of this lawsuit; pre-judgment interest; trial by jury; and for any additional relief this Court deems just and proper. COUNT II - BREACH OF IMPLIED WARRANTIES (against ROYAL OAK) 78. The Association re-alleges paragraphs 1-64, 66-70, and 72-77. 2079. As the developer and general contractor of the ROH Townhomes and common areas, ROYAL OAK impliedly warranted to the Association and its members that the ROH Townhomes and common areas were designed and constructed free from defect or deficiency in materials or workmanship and in accordance with the plans and specifications filed as a matter of public record, the applicable building codes and all applicable local and national codes, ordinances and industry standards, and good design, engineering, and construction practices. These implied warranties are those generally described as implied warranties of fitness, merchantability, habitability, and/or workmanlike construction. 80. The Association and its members relied upon the warranties, skill, and judgment from ROYAL OAK to ensure the construction of the ROH Townhomes was free from defect or deficiency in materials or workmanship and in accordance with the plans and specifications filed as a matter of public record, the applicable building codes, ordinances and industry standards, and good design, engineering, and construction practices and free from water intrusion and related damages. 81. ROYAL OAK breached the implied warranties by negligently constructing the ROH Townhomes as set forth in paragraph 49, and for failing to remedy same. 82. The aggregate effect of the defects and deficiencies as alleged in paragraph 49 has led to community-wide water intrusion damages and other damages at the ROH Townhomes and common areas. 83. The existence or cause of the defects and deficiencies, and the damages caused thereby, are not of the type that would reasonably be recognizable by persons who lack special knowledge or training, or they are hidden by building components or finishes, and they are latent defects and deficiencies to the Association and its members who, in the exercise of due diligence, 21did not discover the existence or cause of the defects and deficiencies until after the purchase and occupancy of the units in the ROH Townhomes. 84. As a proximate cause of ROYAL OAK’s conduct and omissions, the Association and its members have and continue to suffer damages, as alleged in paragraphs 60 and 61, which include, without limitation, the cost to repair the defects and deficiencies in the ROH Townhomes, which are now and will continue to pose a threat to the health, safety, and welfare of the Association and its members, their guests, and the general public until such repairs are effectuated, as well as damages incident to, and consequences of ROYAL OAK’s breach. Damages, in an amount to be determined at trial, are in excess of $30,000.00 and continuing. 85. As a direct and proximate result of ROYAL OAK’s breach of the warranties identified in this Count III, the Association through assessment of its members has expended and will be required to expend additional large sums of money to remedy the defects and deficiencies, and to pay consequential damages to or on behalf of its members, as alleged in paragraph 61. 86. Asa result of ROYAL OAK’s breach of implied warranties, the Association has been compelled to retain the services of attorneys to comply with statutory requirements prior to litigation, to institute and prosecute these proceedings, and to retain expert consultants and witnesses as reasonably necessary to prove its case. WHEREFORE, the Association demands judgment against ROYAL OAK for damages including, but not limited to, the cost of repairing the construction deficiencies; the resulting damages from the construction deficiencies; the cost to properly fund reserve and operating accounts; the incidental and consequential damages caused thereby, including, but not limited to, loss of use and temporary replacement housing during repairs, temporary repair costs, and diminution in value; costs incurred in the prosecution of this lawsuit; pre-judgment interest; trial 22by jury; and for any additional relief this Court deems just and proper. COUNT IV —- NEGLIGENCE AND VICARIOUS LIABILITY (against DIMILLO) 87. The Association re-alleges paragraphs 1-64. 88. Asdeveloper of the TDG Townhomes and common areas, DIMILLO is responsible for all aspects of the construction of the TDG Townhomes and common areas, including, but not limited to, exercising reasonable care in developing and constructing the TDG Townhomes and common areas in compliance with the permitted plans and specifications, the Florida Building Code, industry standards, and manufacturers’ recommendation and in such a way so as to not damage other property. 89. As the developer, DIMILLO owed a non-delegable duty to the Association and its members to exercise reasonable care in constructing the TDG Townhomes and common areas and in compliance with the permitted plans and specifications, the Florida Building Code, industry standards, and manufacturers’ recommendation and in such a way so to not damage other property. 90. | DIMILLO breached its collective and individual duty by negligently developing, constructing, inspecting, supervising, certifying, and approving the construction of the TDG Townhomes and the common areas including, but not limited to, those defective conditions described in paragraph 50 thereby resulting in damages to the TDG Townhomes and the common areas, including, but not limited to, water damage, property damage, and damages to the work and property of other persons or entities involved in the construction of the TDG Townhomes and common areas, necessitating repairs to the resulting damage. 91. Further, as the developer for the construction of the TDG Townhomes, DIMILLO is vicariously responsible for the negligent construction performed by its subcontractors utilized in the construction of the TDG Townhomes. 2392. Asa direct and proximate result of DIMILLO’s breach of the duties identified in this Count IV, the Association has been and will be required to expend large sums of money for the repair and maintenance of the TDG Townhomes and common areas and for damages caused by the defects and deficiencies, as alleged in paragraph 61. Damages, in an amount to be determined at trial, are in excess of $30,000.00 (Thirty Thousand Dollars) and continuing. WHEREFORE, the Association demands judgment against DIMILLO for damages including, but not limited to, the cost of repairing the construction deficiencies; the resulting damages from the construction deficiencies; the cost to properly fund reserve and operating accounts; the incidental and consequential damages caused thereby, including, but not limited to, loss of use and temporary replacement housing during repairs, temporary repair costs, and diminution in value; costs incurred in the prosecution of this lawsuit; pre-judgment interest; trial by jury; and for any additional relief this Court deems just and proper. COUNT V - BREACH OF FLORIDA BUILDING CODE (against DIMILLO) 93. The Association re-alleges paragraphs 1-64 and 88-92. 94. | DIMILLO served as the developer for the construction of the TDG Townhomes and common areas and thus has a responsibility to prevent violations of the Florida Building Code. 95. As the entity responsible for obtaining and pulling the permits for the construction of the TDG Townhomes and common areas, DIMILLO owed the Association, and its members, a non-delegable duty to comply with the Florida Building Code. 96. | DIMILLO actively participated in the construction of the TDG Townhomes and the common areas, directly supervised and influenced the manner in which all of the work was performed, and/or negligently created and/or negligently approved conditions that were in violation of the Florida Building Code, and as such committed violations of the Florida Building 24Code, thereby violating § 553.84, Fla. Stat. 97. DIMILLO knew or should have known that the building code violations existed at the TDG Townhomes and common areas and breached the Florida Building Code by causing the site defects and deficiencies, as alleged in paragraph 50. 98. Asa direct and proximate result of DIMILLO’s violation(s) of § 553.84, Fla. Stat., the Association and its members suffered damages, as alleged in paragraphs 60 and 61, including, but not limited to, property damage to the TDG Townhomes and common areas, water damage, and damages to the work and property of other persons or entities, including, but not limited to, those involved in the construction of the TDG Townhomes and common areas, necessitating repairs to the resulting damage, in addition to the cost to repair the building code violations. 99. As a direct and proximate result of DIMILLO’s violation of § 553.84, Fla. Stat., the Association has been and will be required to expend large sums of money for the repair of the TDG Townhomes and common areas and for resulting damages caused by the defects and deficiencies at the TDG Townhomes, including, but not limited to, those conditions described herein, and to repair the building code violations, as alleged in paragraph 61. WHEREFORE, the Association demands judgment against DIMILLO for damages including, but not limited to, the cost of repairing the construction deficiencies; the resulting damages from the construction deficiencies; the cost to properly fund reserve and operating accounts; the incidental and consequential damages caused thereby, including, but not limited to, loss of use and temporary replacement housing during repairs, temporary repair costs, and diminution in value; costs incurred in the prosecution of this lawsuit; pre-judgment interest; trial by jury; and for any additional relief this Court deems just and proper. COUNT VI - BREACH OF IMPLIED WARRANTIES (against DIMILLO) 25100. The Association re-alleges paragraphs 1-64, 88-92, and 94-99. 101. As the developer of the TDG Townhomes and common areas, DIMILLO impliedly warranted to the Association and its members that the TDG Townhomes and common areas were designed and constructed free from defect or deficiency in materials or workmanship and in accordance with the plans and specifications filed as a matter of public record, the applicable building codes and all applicable local and national codes, ordinances and industry standards, and good design, engineering, and construction practices. These implied warranties are those generally described as implied warranties of fitness, merchantability, habitability, and/or workmanlike construction. 102. The Association and its members relied upon the warranties, skill, and judgment from DIMILLO to ensure the construction of the TDG Townhomes was free from defect or deficiency in materials or workmanship and in accordance with the plans and specifications filed as a matter of public record, the applicable building codes, ordinances and industry standards, and good design, engineering, and construction practices and free from water intrusion and related damages. 103. DIMILLO breached the implied warranties by negligently constructing the TDG Townhomes as set forth in paragraph 50, and for failing to remedy same. 104. The aggregate effect of the defects and deficiencies as alleged in paragraph 50 has led to community-wide water intrusion damages and other damages at the TDG Townhomes and common areas. 105. The existence or cause of the defects and deficiencies, and the damages caused thereby, are not of the type that would reasonably be recognizable by persons who lack special knowledge or training, or they are hidden by building components or finishes, and they are latent 26defects and deficiencies to the Association and its members who, in the exercise of due diligence, did not discover the existence or cause of the defects and deficiencies until after the purchase and occupancy of the units in the TDG Townhomes. 106. As a proximate cause of DIMILLO’s conduct and omissions, the Association and its members have and continue to suffer damages, as alleged in paragraph 60 and 61, which include, without limitation, the cost to repair the defects and deficiencies in the TDG Townhomes, which are now and will continue to pose a threat to the health, safety, and welfare of the Association and its members, their guests, and the general public until such repairs are effectuated, as well as damages incident to, and consequences of DIMILLO’s breach. Damages, in an amount to be determined at trial, are in excess of $30,000.00 and continuing. 107. Asa direct and proximate result of DIMILLO’s breach of the warranties identified in this Count VI, the Association through assessment of its members has expended and will be required to expend additional large sums of money to remedy the defects and deficiencies, and to pay consequential damages to or on behalf of its members, as alleged in paragraph 61. 108. Asa result of DIMILLO’s breach of implied warranties, the Association has been compelled to retain the services of attorneys to comply with statutory requirements prior to litigation, to institute and prosecute these proceedings, and to retain expert consultants and witnesses as reasonably necessary to prove its case. WHEREFORE, the Association demands judgment against DIMILLO for damages including, but not limited to, the cost of repairing the construction deficiencies; the resulting damages from the construction deficiencies; the cost to properly fund reserve and operating accounts; the incidental and consequential damages caused thereby, including, but not limited to, loss of use and temporary replacement housing during repairs, temporary repair costs, and 27diminution in value; costs incurred in the prosecution of this lawsuit; pre-judgment interest; trial by jury; and for any additional relief this Court deems just and proper. COUNT VII —- NEGLIGENCE AND VICARIOUS LIABILITY (against SUMMERPARK) 109. The Association re-alleges paragraphs 1-64. 110. As developer and general contractor of the TDG Townhomes and common areas, SUMMERPARK is responsible for all aspects of the construction of the TDG Townhomes and common areas, including, but not limited to, exercising reasonable care in developing and constructing the TDG Townhomes and common areas in compliance with the permitted plans and specifications, the Florida Building Code, industry standards, and manufacturers’ recommendation and in such a way so as to not damage other property. 111. As the general contractor, SUMMERPARK owed a non-delegable duty to the Association and its members to exercise reasonable care in constructing the TDG Townhomes and common areas and in compliance with the permitted plans and specifications, the Florida Building Code, industry standards, and manufacturers’ recommendation and in such a way so to not damage other property. 112. SUMMERPARK breached its collective and individual duty by negligently developing, constructing, inspecting, supervising, certifying, and approving the construction of the TDG Townhomes and the common areas including, but not limited to, those defective conditions described in paragraph 50, thereby resulting in damages to the TDG Townhomes and the common areas, including, but not limited to, water damage, property damage, and damages to the work and property of other persons or entities involved in the construction of the TDG Townhomes and common areas, necessitating repairs to the resulting damage. 113. Further, as the general contractor for the construction of the TDG Townhomes, 28SUMMERPARK is vicariously responsible for the negligent construction performed by its subcontractors utilized in the construction of the TDG Townhomes. 114. As a direct and proximate result of SUMMERPARK’s breach of the duties identified in this Count VII, the Association has been and will be required to expend large sums of money for the repair and maintenance of the TDG Townhomes and common areas and for damages caused by the defects and deficiencies, as alleged in paragraph 61. Damages, in an amount to be determined at trial, are in excess of $30,000.00 (Thirty Thousand Dollars) and continuing. WHEREFORE, the Association demands judgment against SUMMERPARK for damages including, but not limited to, the cost of repairing the construction deficiencies; the resulting damages from the construction deficiencies; the cost to properly fund reserve and operating accounts; the incidental and consequential damages caused thereby, including, but not limited to, loss of use and temporary replacement housing during repairs, temporary repair costs, and diminution in value; costs incurred in the prosecution of this lawsuit; pre-judgment interest; trial by jury; and for any additional relief this Court deems just and proper. COUNT VIII - BREACH OF FLORIDA BUILDING CODE (against SUMMERPARK) 115. The Association re-alleges paragraphs 1-64 and 110-114. 116. SUMMERPARK served as the developer and general contractor for the construction of the TDG Townhomes and common areas and thus has a responsibility to prevent violations of the Florida Building Code. 117. As the entity responsible for obtaining and pulling the permits for the construction of the TDG Townhomes and common areas, SUMMERPARK owed the Association, and its members, a non-delegable duty to comply with the Florida Building Code. 118. SUMMERPARK actively participated in the construction of the TDG Townhomes 29and the common areas, directly supervised and influenced the manner in which all of the work was performed, and/or negligently created and/or negligently approved conditions that were in violation of the Florida Building Code, and as such committed violations of the Florida Building Code, thereby violating § 553.84, Fla. Stat. 119. SUMMERPARK knew or should have known that the building code violations existed at the TDG Townhomes and common areas and breached the Florida Building Code by causing the site defects and deficiencies, as alleged in paragraph 50. 120. Asa direct and proximate result of SUMMERPARK’s violation(s) of § 553.84, Fla. Stat., the Association and its members suffered damages, as alleged in paragraphs 60 and 61, including, but not limited to, property damage to the TDG Townhomes and common areas, water damage, and damages to the work and property of other persons or entities, including, but not limited to, those involved in the construction of the TDG Townhomes and common areas, necessitating repairs to the resulting damage, in addition to the cost to repair the building code violations. 121. Asa direct and proximate result of SUMMERPARK’s violation of § 553.84, Fla. Stat., the Association has been and will be required to expend large sums of money for the repair of the TDG Townhomes and common areas and for resulting damages caused by the defects and deficiencies at the TDG Townhomes, including, but not limited to, those conditions described herein, and to repair the building code violations, as alleged in paragraph 61. WHEREFORE, the Association demands judgment against SUMMERPARK for damages including, but not limited to, the cost of repairing the construction deficiencies; the resulting damages from the construction deficiencies; the cost to properly fund reserve and operating accounts; the incidental and consequential damages caused thereby, including, but not 30limited to, loss of use and temporary replacement housing during repairs, temporary repair costs, and diminution in value; costs incurred in the prosecution of this lawsuit; pre-judgment interest; trial by jury; and for any additional relief this Court deems just and proper. COUNT IX - BREACH OF IMPLIED WARRANTIES (against SUMMERPARK) 122. The Association re-alleges paragraphs 1-64, 110-114, and 116-121. 123. As the developer and general contractor of the TDG Townhomes and common areas, SUMMERPARK impliedly warranted to the Association and its members that the TDG Townhomes and common areas were designed and constructed free from defect or deficiency in materials or workmanship and in accordance with the plans and specifications filed as a matter of public record, the applicable building codes and all applicable local and national codes, ordinances and industry standards, and good design, engineering, and construction practices. These implied warranties are those generally described as implied warranties of fitness, merchantability, habitability, and/or workmanlike construction. 124. The Association and its members relied upon the warranties, skill, and judgment from SUMMERPARK to ensure the construction of the TDG Townhomes was free from defect or deficiency in material