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`IN THE COUNTY COURT OF THE
`15TH JUDICIAL CIRCUIT IN AND FOR
`PALM BEACH COUNTY, FLORIDA
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`CASE NO.: 50-2024-CC-002958-XXXA-SB
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`COVE CAPITAL, LLC, DBA FLOOR
`COVERINGS INTERNATIONAL BOCA
`RATON,
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`Plaintiff,
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`Vv.
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`ROBERT SCHNEIDER,
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`Defendant.
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`/
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`DEFENDANT’S ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM
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`Defendant, ROBERT SCHNEIDER (“Defendant*y by and through his undersigned
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`counsel, hereby Answers the Complaint filed herein by Plaintiff, COVE CAPITAL, LLC,
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`DBA FLOOR COVERINGS INTERNATIONAL BOCA RATON(‘Plaintiff’), and states:
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`ANSWER
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`1.
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`In response (to the allegations contained in paragraph 1 of Plaintiff's
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`Complaint, Plaintiff purports to assert an action for equitable relief, or alternatively for
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`damagesof $36417.05, plus interest and attorney's fees and costs, but Defendant denies
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`that Piaintiff has\done so or that Defendant has anyliability to Plaintiff and demands strict
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`proof thereof.
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`2.
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`in response to the allegations contained in paragraph 2 of Plaintiff's
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`Complaint, Plaintiff purports to assert that venue lies in Palm Beach County, Florida,
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`becauseall events giving rise to its cause of action took place there, but Defendant denies
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`that it has anyliability to Plaintiff and each and every remaining allegation and inference
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`Page 1 of 25
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`FILED: PALM BEACH COUNTY, FL, JOSEPH ABRUZZO, CLERK, 04/12/2024 03:21:49 PM
`FILED: PALM BEACH COUNTY, FL, JOSEPH ABRUZZO, CLERK, 04/12/2024 03:21:49 PM
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`contained therein and demands strict proof thereof.
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`3.
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`Defendant is without knowledge as to each and every allegation contained
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`in paragraph 3 of Plaintiffs Complaint and therefore denies same and demands strict
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`proof thereof.
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`a. Defendant is without knowledge as to each and every allegation contained
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`in paragraph 3a of Plaintiffs Complaint and therefore deniesesame and
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`demands strict proof thereof.
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`b. Defendant admits the allegations contained in paragraph 3b of Plaintiffs
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`Complaint to the extent that he is over the age.of T8-and a resident of Palm
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`Beach County, Florida, but denies each andkevery remaining allegation or
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`inference contained therein and demand )strict proof thereof.
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`4,
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`Defendant denies each and-eVery“allegation contained in paragraph 4 of
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`Plaintiffs Complaint and demands striet proof thereof.
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`a
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`Defendant deniesach and every allegation contained in paragraph 5 of
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`Plaintiffs Complaint to the extent that Plaintiff refers to 808 Seagrass Drive, otherwise
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`Defendant admits sucheallegations to the extent that Plaintiff meant to refer to 808
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`Seasage Drive.
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`6.
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`Defendant admits each and every allegation contained in paragraph 6 of
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`Plaintiffs=@omplaint to the extent that on or around September 7, 2023, Defendant
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`engaged Plaintiff to remove existing flooring and install new tile on outdoor balconies
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`located at the Property, but denies each and every remaining allegation and demands
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`strict proof thereof.
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`7.
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`Defendant denies each and every allegation contained in paragraph 7 of
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`Plaintiffs Complaint and demands strict proof thereof.
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`8.
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`Defendant denies each and every allegation contained in paragraph 8 of
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`Plaintiffs Complaint and demands strict proof thereof.
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`9.
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`In response to the allegations contained in paragraph 9 of Plaintiffs
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`Complaint, Defendant refers Plaintiff to the original contract, the terms of whieh speak for
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`themselves, but otherwise denies anyliability thereunder and each and @very remaining
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`allegation and inference and demandsstrict proof thereof.
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`10.
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`Defendant denies each and every aliegation.containéd in paragraph 10 of
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`Plaintiffs Complaint and demands strict proof thereof:
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`11.
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`Defendant denies each and every-allegation contained in paragraph 11 of
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`Plaintiffs Complaint and demandsstrict prooftthereof.
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`12.
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`Defendant denies each-and every allegation contained in paragraph 12 of
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`Plaintiff's Complaint and demands stri¢tproof thereof.
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`13.
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`Defendant denies each and every allegation contained in paragraph 13 of
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`Plaintiffs Complaint andedemands strict proof thereof.
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`14.
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`In/tesponse to the allegations contained in paragraph 9 of Plaintiff's
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`Complaint, (Defendant refers Plaintiff to the final invoice, the terms of which speak for
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`themsélvespbut otherwise denies that Defendant agreed to its terms and each and every
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`remaining allegation and inference and demands strict proof thereof.
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`15.
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`Defendant denies each and every allegation contained in paragraph 15 of
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`Plaintiffs Complaint and demands strict proof thereof.
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`16.
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`Defendant denies each and every allegation contained in paragraph 16 of
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`Plaintiff's Complaint and demandsstrict proof thereof.
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`17.
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`Defendant denies each and every allegation contained in paragraph 17 of
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`Plaintiff's Complaint and demands strict proof thereof.
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`18.
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`Defendant is without knowledge as to each and every allegation contained
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`in paragraph 18 of Plaintiffs Complaint and therefore denies same and demands strict
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`proof thereof.
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`19.
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`Defendant readopts and realleges each and every allegation contained in
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`paragraphs 1 through 18 of his Answer herein in response to paragraph 19 of Plaintiffs
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`Complaint.
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`20.
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`Defendant denies each and every allegationacontained in paragraph 20 of
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`Plaintiff's Complaint and demandsstrict proof thereof.
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`21.
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`Defendant denies each and €very allegation contained in paragraph 21 of
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`Plaintiffs Complaint and demands striet proof thereof.
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`22.
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`Defendant denies@ach and every allegation contained in paragraph 22 of
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`Plaintiffs Complaint and demands Strict proof thereof.
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`23.
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`Defendantedenies each and every ailegation contained in paragraph 23 of
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`Plaintiffs Complaint and’demands strict proof thereof.
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`24.(Defendant denies each and every allegation contained in paragraph 24 of
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`PlaintiféssGomplaint and demands strict proof thereof.
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`25.
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`Defendant denies each and every allegation contained in paragraph 25 of
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`Plaintiff's Complaint and demandsstrict proof thereof.
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`26.
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`Defendantis without knowledge as to each and every allegation contained
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`in paragraph 26 of Plaintiffs Complaint and therefore denies same and demands strict
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`proof thereof.
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`27.
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`Defendant readopts and realleges each and every allegation contained in
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`paragraphs 1 through 26 of his Answer herein in response to paragraph 27 of Plaintiffs
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`Complaint.
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`28.
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`Defendant admits the allegations contained in paragraph 28 of Plaintiffs
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`Complaint to the extent of the relationship, but denies that Plaintiff made. valuable
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`improvements and each and every remaining allegation and inference.contained in said
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`paragraph and demands strict proof thereof.
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`29.
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`Defendant denies each and every allegation.containéd in paragraph 29 of
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`Plaintiffs Complaint and demands strict proof thereof.
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`30.
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`Defendant denies each and everyallegation contained in paragraph 30 of
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`Plaintiffs Complaint and demandsstrict préofttheteof.
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`31.
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`In response to the allegations contained in paragraph 31 of Plaintiffs
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`Complaint, Defendant admits that Defendant delivered $40,000.00 to Plaintiff, but denies
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`that Plaintiff was entitled to such’payment, that it is indebted to Plaintiff or that the
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`remaining amount of $36,417.05 alleged to be due is owed and demands strict proof
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`thereof.
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`32.(Defendant denies each and every allegation contained in paragraph 32 of
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`PlaintiffssGemplaint and demands strict proof thereof.
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`33.
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`Defendant denies each and every allegation contained in Plaintiffs
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`Complaint which has not been specifically admitted herein.
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`AFFIRMATIVE DEFENSES
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`34.
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`As and for Defendant's First Affirmative Defense, Defendant states that
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`Plaintiff is barred from seeking damages against him byvirtue of its breach of contract.
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`More particularly, Plaintiff:
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`a.
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`failed to furnish proper supervision and sufficient labor to timely complete
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`the work and project whichis the subject of the action herein;
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`.
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`failed to furnish and use proper and/or substandard materials for
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`incorporation into the Project,
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`including but not
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`limited to™—Rhinset and
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`Redguard waterproofing membrane;
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`failed to timely commence such work;
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`furnished substandard, defective or incomplete, fabor and workmanship
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`including but not limited to failing to grout the flooring whendry,failing to
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`seal the edgesof the balconyflooring Yailing to secure the drain covers and
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`failing to install the flooring wittthe properelevations;
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`.
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`failed to complete the Werk in accordancewith the contract documents, the
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`Florida Building Ceéde.and/or industry standards;
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`overcharged far work’never undertaken and materials never delivered to or
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`incorporated into the subject project; and
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`.
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`failed to pull permits for that portion of the work for which permits were
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`needed.
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`35:
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`As and for Defendant's Second Affirmative Defense, Defendant states that
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`Plaintiff's claim for unjust enrichmentis barred by virtue of the assertion by Plaintiff of a
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`legal remedy in the form of an action for breach of contract.
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`36.
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`As and for Defendant's Third Affirmative Defense, Defendant states that
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`Plaintiff is barred from seeking damages against him byvirtueofits failure to mitigateits
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`damages. Plaintiff knew of the existing roof system under the balconyflooring, yet still
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`took on the project claiming its expertise in removing old flooring with such condition and
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`waterproofing beneath the new flooring with Redguard waterproofing membrane.
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`Plaintiffs lack of such experience should have precludedit from undertaking the project.
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`Furthermore, Plaintiff furnished and/or purchased Redguard waterproofing membranefor
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`more than the one balcony for whichit was approved and could have avoided incurring
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`the additional cost for Redguard to be used on other balconies for which ifwas not proper.
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`Lastly, Plaintiff failed to remedy defects and deficiencies in~thé work and failed to
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`undertake such workin a diligent and workmanlike manner.whichewould have prevented
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`Defendant from being damaged.
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`37.
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`As and for Defendant's Fourth Affirmative’7Defense, Defendant states that
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`Plaintiff is barred from seeking damages againstit as a result of its unclean hands as
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`moreaffirmatively set forth in its Affirmative'Befenses and Counterclaim filed herein .
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`38.
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`As and for Defendant's Fifth Affirmative Defense, Defendant states that by
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`virtue of Plaintiffs conduct as more’fully set forth herein, Defendantis entitled to a set off
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`from any sums found due. Plaintiff.
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`39.
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`Aséand for Defendant's Sixth Affirmative Defense, Defendant states that
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`Plaintiff is barred from seeking damages against him byvirtue ofits breach of the implied
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`warranties.of merchantability and fitness for the intended purpose which have not been
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`specifically disclaimed.
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`40.
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`As and for Defendant's Seventh Affirmative Defense, Defendant states that
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`Plaintiff is barred from seeking damages againstit by virtue of a failure of consideration.
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`More particularly, Plaintiff failed to furnish labor, materials and supplies for which
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`Defendant paid consideration and certain labor, materials and supplies furnished by
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`Plaintiff were defective, deficient or improper such that they had a value less than that
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`paid by Defendant or no valueat all.
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`41.
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`As and for Defendant's Eighth Affirmative Defense, Defendant states that
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`Plaintiff has waivedits right to seek damages against him byvirtue of its knowing failure
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`fo furnish all labor, materials and supplies in accordance with the terms of thescontract for
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`the project which is the subject of the action herein.
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`42.
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`As and for Defendant’s Ninth Affirmative Defense, Defendant states that
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`Plaintiff is estopped from seeking damages against him by.virtue*otits intentionalfailure
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`to complete work in a timely and workmanlike manner and‘furnish all labor, materials and
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`supplies required as well as its provision of defective and deficient labor, materials and
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`supplies. More particularly, Plaintiff informed Befendantthat it could complete the subject
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`work by a date certain and that it had experience installing flooring over existing roof
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`systems. As a result, Defendant reliedpupon Plaintiffs representations and conduct and
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`engaged Plaintiff to do so.
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`\In fact, Plaintiff had little experience doing so, and retained
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`others to assist who likewise furnished defective labor, materials and supplies on its
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`behalf.
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`43.(As\and for Defendant's Tenth Affirmative Defense, Defendant states that
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`Plaintiff'seelaims are barred byvirtue of its negligencein furnishingits labor, materials and
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`supplies to undertake the subject project. More specifically, Plaintiff owed a duty to
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`Plaintiff to furnish labor, materials and supplies in accordance with the standard of care
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`used by similar contractors, in the same locale under similar circumstances, consistent
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`with all applicable building codes, sound construction industry standards, and free from
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`defects and deficiencies. Plaintiff also owed a duty to Defendant to supervise and
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`coordinate the subject work and protect the residence from damages due it. Plaintiff
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`breachedits duties owed to Defendant, thereby causing Defendant to suffer damages.
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`As a result, Plaintiff is not entitled to damages soughtin its Complaint filed in the action
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`herein.
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`44.
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` Asandfor Defendant's Eleventh Affirmative Defense, Defendant:states that
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`Plaintiffs claims are barred in that it cannot recover upon such claims tosthe extent that
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`certain labor, services, and materials allegedly furnished weré-not.authorized by the
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`alleged contract and/or any change orders thereto including, butnot limited, the sealing
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`of drains and the purchase of excess Redguard watefproofing membrane.
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`45.
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`As and for Defendant's Twelfth Affirmative Defense, Defendantstates that
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`Plaintiff's claims are barred by the doctrine Of.unelean hands. Plaintiff failed to perform
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`its obligations under the subject contract andotherwisefailed to perform the subject work
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`or provide construction servicés»and materials in a workmanlike manner and in
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`accordance with the contract, applicable building codes,
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`industry standards and/or
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`notices of acceptance.\™hhis wrongful conduct precludesPlaintiff from seeking to invoke
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`the Court's jurisdiction against Defendant.
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`46.(As\and for Defendant's Thirteenth Affirmative Defense, Plaintiff states that
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`Plaintiffseelaims are barred becauseit breachedits implied covenant of good faith and
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`fair dealing under the subject contract by furnishing defective, deficient and incomplete
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`labor, materials, and supplies to the subject project and failed to undertake the subject
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`work in a proper manner.
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`47.
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`As and for Defendant's Fourteenth Affirmative Defense, Defendant states
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`that Plaintiffs claims are barred byvirtue of its failure to comply with the Florida Building
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`Code and/or industry standards for those reasons more particularly set forth in Plaintiff's
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`Counterclaim filed herein.
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`48.
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`Asand for Defendant's Fifteenth Affirmative Defense, Defendant states that
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`Plaintiffs claims for damages are barred because the granting of the relief requested in
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`Plaintiffs Complaint will provide Plaintiff with an improper windfall.
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`WHEREFORE, Defendant hereby requests that
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`this Court eater an Order
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`dismissing Plaintiffs Complaint herein, awarding Defendant costs“and disbursements,
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`reasonableattorneys’ fees pursuant to the subject Contract.and forSuch other and further
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`relief as is just and proper.
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`COUNTERCLAIM
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`Defendant ROBERT SCHNEIDER\ Defendant’), by and through his undersigned
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`counsel, hereby sues Plaintiff, GOVE CAPITAL, LLC, DBA FLOOR COVERINGS
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`INTERNATIONAL BOCA RATON¢Plaintiff’) and Defendant VINCE ROZEK,individually
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`(“Rozek”) (collectively “Defendants”), and alleges asfollows:
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`ALLEGATIONS COMMON TO ALL COUNTS
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`1.
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`2.
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`Defendant is a resident of and domiciled in Palm Beach County, Florida.
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`Upon information and belief, Plaintiff is a Florida limited liability company
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`with its principal place of business in Palm Beach County, Florida.
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`3.
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`Upon information and belief, Defendant Rozek is a resident of and domiciled
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`in Palm Beach County, Florida.
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`4.
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`At all times material hereto, Defendant Rozek was the managing member
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`of Plaintiff as well as its employee and agent.
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`Page 10 of 25
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`5.
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`Venue is proper in Palm Beach County, Florida, which is in the county
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`where the causesof action sued upon herein accrued and where the subject real property,
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`described infra, is located.
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`6.
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`This is an action for damages which exceed $50,000.00, exclusive of
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`interest, costs, and attorney fees and is subjectto the jurisdiction of this Court.
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`7.
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`All conditions precedent to the maintenance of the causes offaction herein
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`have been performed, have occurred or have been waived.
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`8.
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`Defendant has retained the services of Shapifo Blasi Wasserman &
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`Hermann, P.A. to represent him in this cause and has agreed afid become obligated to
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`pay it a reasonable attorneys’ fee for its services.
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`THE PROPERTY
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`9.
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`The real property which isAhe subject of the action herein is located at 808
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`Seasage Drive, Delray Beach, FL 38483 upon whichis constructed a single-family home
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`(hereinafter "the Property”).
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`FACTUAL ALLEGATIONS
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`10.
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`Deféndantyis now, and at all times material hereto was, the owner of the
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`Property.
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`11.\
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`“When Defendant
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`first
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`contacted Plaintiff, Defendant had already
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`approached a numberofflooring contractors, flooring companies and paving contractors
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`to do work which involved demolition of existing flooring on balconies with drains in some
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`of the floors and installation oftile.
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`12.
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`However, none of them would agree to bid to do so or Defendant refused
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`to allow them to bid because oftheir lack of experience with secondfloor balconies.
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`13.
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`In or about mid-2023, Defendant first contacted Plaintiff regarding the
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`possibility of Plaintiff replacing flooring on and around the exterior of the Property
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`including balconies thereon.
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`14.
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`Upon Defendant contacting Plaintiff, Plaintiff's sales representative, Robert
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`Halpern (“Halpern”), represented that Plaintiff had extensive experience in
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`such
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`demolition and instailation of flooring especially on balconies and that it couldjundertake
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`the subject work competently.
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`15.
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`Halpern further advised Defendant that the owner ofPlaintiff, Defendant
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`Rozak, was the technical expert for Plaintiff.
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`16.
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`Upon being informed of such fact, Defendant advised Halpern that he
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`would like to meet Rozak at the Property to discuss, the scope of the project and insure
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`that Plaintiff could undertake same given the YefUsal of previous parties to get involved.
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`17.
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`Thereafter, Plaintiff furnished)Defendant with two unexecuted proposals,
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`none of which contemplated removal and replacement of the roofing system or the use
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`of a Redguard waterproofing membrane beneath the flooring to be replaced. True and
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`correct copies of the proposals are attached hereto as Exhibits “A” and “B” respectively
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`and incorporatedyherein by reference.
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`18.
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`After receipt of the proposals, on or about September 1, 2023, Defendant
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`asked*Halpern whetherbalconyfloors with drains could be removed and again expressed
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`his concern about removing the balconyflooring because of the underlying roof system
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`and the fact that the original builder of the home had advised him that the floors should
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`not be removed becauseof the roofing underlayment.
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`19.
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`Thereafter, Halpern claimed to have spoken to Defendant Rozak who
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`informed him that there would be no issue with removing the existing roof system because
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`it would be replaced with Redguard waterproofing membrane.
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`20.
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`This wasthefirst time Defendant was advised of Redguard waterproofing
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`membrane.
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`21.
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`To such end, on or about September 2, 2023, a new~proposal was
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`presented including the application of Redguard.
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`22. Onor about September 7, 2023, Defendant Rozak visitedthe Property with
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`Halpern to meet Defendant and inspect the balconies.
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`23.
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` Atthat time, Defendant reiterated that beneath the existing balcony flooring
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`was a roof system that needed to be removed for the néw flooring.
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`24.
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`In response, Defendant Rozak‘epresented to Defendant that the removal
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`of the existing roofing underlaymentwould not create any issues and would be replaced
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`with Redguard waterproofing mémbrane.
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`25.
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`During Defendant Rozak’svisit to the Property to meet with Defendant and
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`inspect same, he determined that there was a leak in the Southeast cornerof the balcony
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`adjacentto the gym.
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`26.(Duting such visit, Defendantfurther pointed out to Defendant Rozakthat he
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`had had=anether contractor replace an outdoor kitchen porch floor which was installed
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`improperly and caused pooling of water.
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`27.
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`Defendant indicated that he wanted to insure that such condition was not
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`repeated when the balcony flooring was replaced.
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`28.
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`Before concluding his meeting with Defendant Rozak and Halpern,
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`Defendant once again reminded them of the existence of the roofing system and
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`questioned the propriety of removing the existing flooring rather than simply installing the
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`new flooring over the old one. Defendant once again informed Defendant Rozak and
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`Halpern that if he retained Plaintiffs services, he wanted assurances that Defendant
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`Rozak would manage the project, be present daily and at all critical times, utilize Plaintiffs
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`best crew, insure that there was no pooling of water, keep Defendantinformed as to the
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`status of the demolition and installation and commencethe tile installation on November
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`27, 2023 and complete same by December 18, 2023 due to. Deféndant’s travel plans and
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`his desire to be present during the undertaking of the’subject’ work.
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`29.
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`Defendant was scheduled to be out of the country on December 31, 2023
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`and needed the time between December18!" apd December 31% to have the balcony
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`railings re-installed.
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`30.
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`Defendant Rozaka@gain assured Defendant that all of his concerns would
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`be addressedincluding that the existing flooring could be removed notwithstanding the
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`existing roofing systen®since Redguard waterproofing membrane would bereplacingit,.
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`31.
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`However, he expressed concern about the leak and the damageit was
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`causing fof which he indicated to Defendant he had trades who could undertake
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`necessaryerepairs if they were needed and if so, Defendant would be responsible for such
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`cost.
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`32.
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`Based upon the representations of Defendants, on or about September7,
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`2023, Plaintiff and Defendant entered into the subject agreement (hereinafter “the
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`Agreement’), which was previously sent to Defendant, whereby Plaintiff agreed to
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`undertake the demolition of the existing balcony flooring and installation of new balcony
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`flooring (hereinafter “the Work"). A true and correct copy of the Agreement is attached
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`hereto as Exhibit “C” and incorporated herein by reference.
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`33.
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`Pursuant further to the Agreement, Defendant paid Plaintiff a deposit in the
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`amount of $15,000.00.
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`34.
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`Pursuant further to the Agreement, Redguard waterproofing mémbrane was
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`to be installed to replace the existing roof system.
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`35.
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`Since Redguard waterproofing sealant was the mateériahto’be used in place
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`of roofing underlayment, the Agreement was silent as toathe cost to replace the roof
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`system and Defendant expected that such cost would be absorbed byPlaintiff.
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`36.
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`Pursuant further to the Agreement; demolition of the existing flooring was
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`to commence on November 6, 2023 in erder to’expedite remedying the roof leak,
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`if
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`needed, prior to thetile installation contemplated to commence on November 27, 2023.
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`37.
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`The installation of the ‘new flooring was not
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`to be commenced until
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`November27th, as originally agreed, as Defendant was scheduled to be on vacation and
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`wanted to be present diiring suchtime.
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`38.
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`However,installation of the flooring had not started on November 27, 2023
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`not only dué to the need for underlayment, but also due to Plaintiff's inability to procure
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`all of thé*fleoring materials and labor.
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`39.
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`During the demolition, Defendant was out of the country, but inquired of
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`Plaintiff and Defendant Rozak as to the status to which Plaintiff responded that
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`“everything looked good”, but he wanted to speak with his consultant about the roofing
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`underlayment.
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`40.
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`41.
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`At that time, Plaintiff had uncovered the felt underlayment.
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`Thereafter, Plaintiff and Defendant Rozak confirmed with his contractor that
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`the Redguard waterproofing membrane would have been insufficient to replace the
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`existing roof system.
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`42.
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`Upon doing so, Defendant Rozak claimed that he was unaware of the
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`existing roofing system of which he had been apprisedof prior to Defendantentering into
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`the Contract and that notwithstanding his intention to use Redguardy waterproofing
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`membrane,
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`the purported issues with the roof system/wotld—be Defendant's
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`responsibility.
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`43.|Suchclaim wascontrary to the proposal of Plaintiff given to Defendantprior
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`to Defendant executing the Contract which incladedRedguard to act as a seal!in lieu of
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`the underlayment, whichis a critical part ofthe roof system.
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`44.
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`Defendant has learned+hat the’use of Redguard waterproofing membrane
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`is not a substitute for properly installedjunderlayment.
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`45.
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`Had Defendant known that Redguard was not the proper product, it would
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`never have agreed to ‘remove the existing flooring and simply placed the new flooring
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`over the existing*ones.
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`46.(At‘that time, Plaintiff furnished Defendant with a specification sheet for
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`replacifgthe.roof underlayment although a partial proposal for such replacement wasnot
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`provided until a later date.
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`47.
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`Additionally, the balcony adjacent to the bedroom wascantilevered from the
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`wall such that it needed additional support during the existing floor removal process.
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`Page 16 of 25
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`48.
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`Plaintiff agreed to furnish such support byutilizing existing scaffolding at the
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`Property.
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`49.
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`Nevertheless Defendant observed during the removal of the existing
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`flooring that no such support was provided, severely weakening the structural support of
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`the balcony.
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`50.
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`Dueto Plaintiff's destruction of the roof system andfailure to ifstall a proper
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`replacement, Defendant further was obligated to retain a roofer resulting in substantial
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`additional costs to him.
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`51.
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`Near the purported completion of the work, Plaintifffiéeded to grout the new
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`tile and did so while wet resulting in effervescence and. otherissues.
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`52.
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`Similarly upon completion, extensive.ponding of water occurred on the
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`balconiesin the rain causing premature deterioration of the balconies compromising their
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`structural integrity and water intrudedebeneath thetile at the floor edging damaging paint
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`and deteriorating the stucco.
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`53.
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`Defendant haslikewise determined that Plaintiff failed to pull permits for that
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`workfor which permits\were required.
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`COUNT I
`BREACH OF AGREEMENT BY PLAINTIFF
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`54...
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`Defendant repeats and realleges each and every allegation contained in
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`paragraphs 1 through 53 above, asif more fully set forth herein.
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`55.
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`This is an action for damages in an amountin excess of $50,000.00.
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`56._‘Plaintiff was obligated to Defendantto furnish labor, materials and supplies
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`in accordance with the terms of the Agreement, applicable building codes and
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`construction industry standards as well as in a mannerfree from defects and deficiencies.
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`57.
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`‘Plaintiff materially breached the Agreement, including but not limited to by:
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`a.
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`failing to furnish proper supervision and sufficient labor to timely complete
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`the work and project whichis the subject of the action herein;
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`b.
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`failing to furnish and use proper and/or substandard materials for
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`incorporation into the Project,
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`including but not
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`limited to Fhinset and
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`Redguard waterproofing membrane;
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`c.
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`failing to timely commence such work;
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`d. damaged the roof systems beneath the flooring upon demolition and failed
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`to replace same;
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`e.
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`furnishing substandard, defective ar incomplete, labor and workmanship
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`including but not limited to failirig to. grout the flooring when dry,failing to
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`seal the edges of the balconytiles, failing to fasten the drain covers and
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`failing to install the flodring.with the proper elevations;
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`f.
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`failing to complete the Work in accordancewith the contract documents, the
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`Florida BuildingxCode and industry standards;
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`g. overcharged ‘for work undertaken and materials never delivered to or
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`incorporated into the subject project; and
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`ha
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`failing to pull permits for that portion of the work for which permits were
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`needed.
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`58.
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`Commencing shortly before Defendant's
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`return from vacation and
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`continuing thereafter, Defendant notified Plaintiff of the issues with the flooring and
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`demanded that Plaintiff remedy same. True and correct copies of notices are attached
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`hereto as Composite Exhibit “D” and incorporated herein by reference.
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`Page 18 of 25
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`59.
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`Notwithstanding such notices,Plaintiff has failed and refused and continues
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`to fail and refuse to take any action to cure any of the defects and deficiencies.
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`60.
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`As a direct result of Plaintiffs material breaches of the Agreement,
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`Defendant has suffered and will continue to suffer damages, including but not limited to
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`costs to remove, replace, repair, correct, and complete Plaintiffs defective and deficient
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`Work and costs to remove, replace, construct, and repair other property6¢ated on the
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`Property damaged by Plaintiff's defective and deficient work.
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`61.
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`Pursuant to the terms and conditions of the Agreément,-Plaintiff is liable to
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`Defendant for his attorneys’ fees and costs incurred as a result ofits breach.
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`WHEREFORE, Defendant demands judgmentfor damages against Plaintiff in an
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`amount in excess of $50,000.00 together with an award of costs and disbursements,
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`reasonable attorneys’ fees and such othér andYfurtherrelief as is just and proper.
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`COUNTII
`NEGLIGENCE BY PLAINTIFF
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`62.
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`Defendant repeats and realleges each and every allegation contained in
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`paragraphs 1 throtigh 20, 22 through 31, 39 through 53 and 55 above, as if more fully set
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`forth herein
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`63.\
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`“Subsequent to September 7, 2023, Plaintiff undertook the demolition of the
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`existing balcony flooring and installation of new balconyflooring.
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`64.
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`Independent of the terms of any agreement between Defendant and
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`Plaintiff,
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`in doing so Plaintiff owed a duty to Defendant to furnish labor, materials and
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`supplies in accordance with the standard of care used by similar licensed contractors, in
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`Page 19 of 25
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`the same locale under similar circumstances, consistent with all applicable building
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`codes, sound construction industry standards and free from defects and deficiencies.
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`65.
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`‘Plaintiffs duties to Defendant also included supervising and coordinating
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`the work undertaken, protecting the residence, personal property and other property from
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`damages dueto the renovations, and exercising reasonable care not to damage other
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`property.
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`66.
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`‘Plaintiff breached its duty owed to Defendant, including,but not limited to
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`by:
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`a. damaging stucco on the exterior walls ofthe Défendant’s home in and
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`around the balcony flooring;
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`b. compromising the structural
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`integsity”of the balcony adjacent to the
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`bedroom byfailing to supporsame during removal of existing flooring;
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`c. damaging the roof system ‘beneath the balcony flooring upon removal:
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`and
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`d. otherwise failing to furnish the Work in accordance with the Florida
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`BuildingsxCode and/or sound construction industry standards;
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`67. Asa direct and proximate result of Plaintiffs negligence, Defendant has
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`suffered and continues to suffer damages, including but not limited to costs to remove,
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`replac@eonstruct, and repair other property located on the Property damaged by
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`Plaintiff's defective and deficient work.
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`WHEREFORE, Defendant demands judgment against Plaintiff for damagesin
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`an amountin excess of $50,000.00 together with costs and disbursements, reasonable
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`attorney's fees and such other and furtherrelief as is just and proper.
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`Page 20 of 25
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`VIOLATION OF SECTION aaGy STATUTES AGAINST
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`PLAINTIFF — THE FLORIDA BUILDING CODE
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`68.
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`Defendant repeats and realleges each and every allegation set forth
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`contained in paragraphs 1 through 53 and 55 above, asif m