appellant’s initial brief stok folk kon - fl courts · initial brief case no. 3d12-1592 ii stok...

STOK FOLK + KON 18851 N.E. 29th Avenue • Suite # • Aventura • Florida • 33180 •Tel: 305.935.4440 • Fax 305.935.4470

IN THE DISTRICT COURT OF APPEAL OF FLORIDA’S THIRD DISTRICT

CASE NO. 3D13-1256 L.T. CASE NO. 05-467

IRA JACOBSON, M.D.

Appellant,

v.

JELD-WEN, INC.

Appellee. ' ON APPEAL FROM THE CIRCUIT COURT OF THE 11th JUDICIAL CIRCUIT

IN AND FOR MIAMI-DADE COUNTY, FLORIDA

APPELLANT’S INITIAL BRIEF

STOK FOLK + KON Attorneys for Appellant Harbour Center, Suite 1005 18851 N.E. 29th Avenue Telephone: (305) 935-4440 Facsimile: (305) 935-4470 E-Mail: [email protected]

\

E-Copy Received Mar 20, 2014 2:33 PM

mailto:[email protected]

Initial Brief CASE NO. 3D12-1592

ii STOK FOLK + KON

18851 NORTHEAST 29th AVENUE, SUITE 1005 • AVENTURA, FLORIDA 33180 • (305) 935-4440 • FAX: (305) 935-4470

TABLE OF CONTENTS

TABLE OF CONTENTS…………………………………………………………..ii TABLE OF CITATIONS AND OTHER AUTHORITIES ................................ iii, iv PRELIMINARY STATEMENT…………………………………………….……v STATEMENT OF THE CASE AND FACTS .......................................................... 1 BACKGROUND FACTS…………………………………………………... .......... 2 PROCEDUREAL FACTS OF CASE……………………………………………...5 MOTIONS FOR SUMMARY JUDGMENTS……………………………………..7 SUMMARY OF THE ARGUMENT.......……………………………………...…10 STANDARD OF REVIEW……………...………………………………………..11 ARGUMENT…………..……………………………………………….…………12

A. Jeld-Wen Was Required to Comply with the South Florida Building Code By Obtaining a Permit for the Replacement and Installation of the Doors and Windows in Jacobson’s Home…………..12

B. The Trial Court Committed Reversible Error by Making the Determination that Jeld-Wen was a Mere Manufacturer/Supplier of Materials During the Replacement of Doors and Windows in Jacobson’s Home……………………………………………………….15

C. Jacobson Timely Filed its Action Against Jeld-Wen within the Four (4) Year Statute of Limitation Period………………………..16

CONCLUSION…………………………………………………….…………......19 CERTIFICATE OF SERVICE ……….…………………………………….……20 CERTIFICATE OF COMPLIANCE.………………………………………...…..20


iii STOK FOLK + KON


TABLE OF CITATIONS AND OTHER AUTHORITIES CASES Page(s) Allapattah Services, Inc. v. Exxon Corp., 188 F.R.D. 667, 679 (S.D. Fla. 1999) aff’d 333 F.3d. 1248 (11th Cir. 2003)…………………………………..17 Buck v. Hardy, 106 So.2d. 428, 428-29 (Fla. 3d DCA 1958)…………………………..12 Creviston v. General Motors Corp., 225 So.2d. 331, 334 (Fla. 1969)………………………………………..18 Gallagher v. Dupont, 918 So.2d. 342 (Fla. 5th DCA 2005)……………………………………11 Gomes v. Stevens, 548 So.2d. 1163 (Fla. 2d DCA 1989)………………………………….11 Gonzalez v. Chase Home Fin. LLC, 37 So.3d. 955 (Fla. 3d DCA 2010)…………………………………….10 Hearndon v. Graham, 767 So.2d. 1179, 1184-85 Fla. 2000)…………………………………17, 18 Hillsborough Community Mental Health Ctr. V. Harr, 618 So.2d. 187, 189 (Fla. 1993)…………………………………………18 Holl v. Talcott, 191 So.2d. 40 (Fla. 1966)………………………………………………..12 Hurricane Boats, Inc. v. Certified Indus. Fabricators, Inc., 246 So.2d. 174 (Fla. 3d DCA 1971)……………………………………..15 Moore v. Morris, 475 So.2d. 666, 668 (Fla. 1985)…………………………………………12 Pearson v. Ford Motor Co., 694 So.2d. 61, 68-69 (Fla. 1st DCA 1997)………………………………17


iv STOK FOLK + KON


Saltponds Condo. Ass’n, Inc. v. McCoy, 972 So.2d. 230, 232 (Fla. 3d DCA 2007)…………………………….....19 Seinfeld v. Commercial Bank & Trust Co., 405 So.2d. 1039 (Fla. 3d DCA 1981)…………………………………..15 Shaffran v. Holness, 93 So.2d. 94 (Fla. 1957)………………………………………………..12 Snyder v. Cheezem Dev. Corp., 373 So.2d. 719 (Fla. 2d DCA 1979)……………………………………11 Villazon v. Prudential Health Care Plan, Inc., 843 So.2d. 842 (Fla. 2003)………………………………………….13, 15 Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d. 126, 130 (Fla. 2000)…………………………………….…11 Wills v. Sears, Roebuck & Co., 351 So.2d. 29 (Fla. 1977)…………………………………………..11, 12 Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321 (1971)…………………………………………………..17 Florida Rules Fla.R.App.P. 9.130…………………………………………………………..11 Fla.R.Civ.P. 1.510……………………………………………………………11 Florida Statutes §553.84……………………………………………………………6, 10, 12, 15, 16 §95.031……………………………………………………………………….17 §95.11………………………………………………………………………...19 Additional Authority Florida Building Code 3401.8.3.2(a) (2001)………………………………..13 Florida Building Code and Section 104.1…………………………………..10


v STOK FOLK + KON


PRELIMINARY STATEMENT

Appellant, IRA JACOBSON, M.D., Plaintiff in the trial court below, shall

be referred to herein as “Appellant” or “JACOBSON.” The Appellee, JELD-

WEN, INC., a defendant below, shall be referred to herein as “Appellee” or

“JELD-WEN.” While not an appellee, co-defendant below, S&P Architectural

Products, Inc., shall be referred herein as “S&P.” The Circuit Court for the

Eleventh Judicial Circuit in Miami-Dade County, Florida will be referred to as the

“Trial Court.” Designations to the Index Record on Appeal shall be referred to as

“R at pg(s). ” and Designations to the Appendix filed contemporaneously

with the Appellant’s Initial Brief shall be referred to herein as “App.- ___” with

Exhibits/Page Numbers, if applicable, referenced in parentheses, such as “App. -

____(__)(__).”


STOK FOLK + KON

18851 N.E. 29th Avenue • Suite #1005 • Aventura • Florida • 33180 • Tel: 305.935.4440 • Fax 305.935.4470

1

STATEMENT OF THE CASE AND FACTS

This Appeal arises out of the Trial Court’s Order of April 4, 2013 granting

JELD-WEN’s Renewed Motion for Summary Judgment on JACOBSON’s Third

Amended Complaint and Entering Final Judgment in favor of JELD-WEN. (R-

241-242). As the Final Order was entered despite the existence of genuine issue as

to any material fact, the Order must be reversed in its entirety.

The suit below was commenced in 2005 against co-Defendant below, S&P,

a subcontractor hired to install doors and windows during the construction of

JACOBSON’s home in Coco Plum, Miami, in the late 1990s through the early

2000s. (A- 1). The window and door products installed by S&P were Caradco

brand, which company was purchased by Appellee, JELD-WEN, subsequent to the

installation in JACOBSON’s home. (Id.). In 2009, the Trial Court granted

JACOBSON leave to file his Second Amended Complaint, which amendment

added JELD-WEN as a co-defendant. (A-2). The Second Amended Complaint,

and then the Third Amendment Complaint, each allege a single cause of action

against JELD-WEN for its violation of the Florida Building Code when it

instructed and facilitated the replacement of the defective doors and windows in

JACOBSON’s home from 2003 through the end of 2005, without first obtaining a

permit. (A-3) (A-4).


STOK FOLK + KON


2

Background Facts

In August 1996, JACOBSON retained Brookman-Fels, a contractor, to

build a private residence located at 299 Cocoplum Road, Coral Gables, Florida,

33143. (R. at 20) (A-4). In accordance with this project, Brookman-Fels

arranged for several areas of design, construction, installation, with various

companies for the direct benefit of JACOBSON. (R. at 14-20) (a-4).

More specifically, on or about August 28, 1996, Brookman-Fels, as general

contractor, entered into an agreement with S&P for the furnishment and installation

of windows, doors and transoms. (R. at 20) (A-4). Pursuant to representations

made by S&P and the subsequent agreement, these windows and doors were

required to be a very specific type that would meet Miami-Dade County and City

of Coral Gables building codes. (Id.) Furthermore, these windows and doors

were supposed to be designed to protect against damage for various weather

conditions including special protection from the hurricanes. (Id.)

S&P made specific representations to JACOBSON concerning the type of

windows it could install, the protection such windows would provide against

certain weather related events including hurricanes, and the fact that the windows

would comply with all building code requirements at the time of installation. (Id.).

In consideration for the furnishment and installation of this specific quality of

windows and doors, JACOBSON agreed to provide compensation in the amount


STOK FOLK + KON


3

of $136,873.00. (Id.). After entering into the agreement, S&P furnished and installed

several windows and doors in JACOBSON’s private residence and S&P was paid

for its work. (Id.).

Several years later on or about July, 2002, JACOBSON had an inspection

done on the windows and doors, installed by S&P. (Id.). JACOBSON was

seeking an insurance rebate pursuant to S&P's installation of hurricane

resistant windows and doors and thereby required an inspection by a field expert to

verify that such windows were actually installed in the private residence. (Id.). Upon

the performance of this inspection, JACOBSON was informed by the field

inspector that the windows and doors installed by S&P were not in fact hurricane

proof. (Id.) Moreover, they were not even the Caradco brand that JACOBSON had

originally contracted. Rather, the windows and doors S&P had installed were a

composite, home-made assembly which was not even a substitute brand and were

not rated for hurricane protection. (Id.).

JACOBSON thereafter discovered that S&P fraudulently reported to the City of

Coral Gables that it had installed double-paned, insulated glass windows and doors,

which were in fact up to building codes but were not hurricane protective. (Id.). It was

later discovered that S&P never installed these windows and doors but rather

installed replacement windows and doors which did not meet the applicable

building codes. (Id.).


STOK FOLK + KON


4

After discovering that the installed windows were not, in fact, Caradco brand

windows as agreed and contracted for by JACOBSON, at some point during the end

of the year 2002, Jacobson contacted a window company, Windows Professional,

Inc. (“Windows Professional”) to receive an estimate to replace and install the

defective products so that his home would be in compliance with all building codes,

what JACOBSON had originally contracted for (Id.).

After conducting an inspection of the doors and windows installed in

JACOBSON’s home and concluding that the doors and windows were defective, a

representative of Windows Professional said that it would contact JELD-WEN, the

parent corporation of Caradco, and arrange for over 50% of the doors and windows

to be replaced due to the fact they were rotten and faulty. (Id.) (R. at 51-57).

Windows Professional contacted JELD-WEN and explained the deficient

state of the doors and windows installed in the Plaintiff’s home. (Id.). JELD-

WEN said that due to the deficiency in the products sent by Caradco to

JACOBSON, they would provide replacement windows and doors to be

installed by ProWindows, Inc., an agent of JELD-WEN. (A.-5g, pg. 19-20)

Pursuant to the ensuing agreements, several times from 2003 through

2005, JELD-WEN instructed Caradco to ship replacement doors and windows

to JACOBSON for the purpose of having ProWindows, Inc., an installer


STOK FOLK + KON


5

chosen and paid by JELD-WEN, to install same in JACOBSON’s home. (A.-

5g, pg. 19-20).

JELD-WEN instructed ProWindows, Inc. to install the replacement

doors and windows in JACOBSON’s home after same where painted and

prepared for installation, a process that took years. (R. at 14-20).

The last of the Replacement doors and windows were installed by

ProWindows, Inc. in the Jacobson home late in 2005. (R. at 14-20). As

testified to by Dale Corwin, the representative of JELD-WEN, JEL-WEN paid for

the labor for ProWindows to install the Replacement products. It is undisputed

that no permit was ever applied for or obtained by JELD-WEN, or anyone, to

undertake the Replacement work. (A.- 5g, pg. 19-20).

During 2007, JACOBSON discovered that the Replacement products

were likewise defective due to the fact they began to rot and deteriorate rapidly

causing the water to permeate through and between the outside walls of the

JACOBSON home. (R. at 14-20).

Procedural Facts of Case

In January 2005, the Appellant commenced the Trial Court proceedings by

filing its complaint against co-defendant S&P. (A-1). The Appellant’s Amended

Complaint deemed filed as of record on June 9, 2006 alleged causes of action

against S&P for breach of contract, breach of warranty and a fraud in the


STOK FOLK + KON


6

inducement against Defendant S&P. (A-6).

After further investigations and the discovery of the latent defect in the

Replacement doors and windows replaced by JELD-WEN, on November 17, 2009,

Appellant filed his Motion for leave of Court to file a Second Amended Complaint.

A-7). The proposed Second Amended Complaint sought to add a single count

against Appellee, as well as co-defendant S&P, for a violation of the Section

553.84, Florida Statute (“Count II”); (Id.).

Count II alleged a violation of Fla. Stat. § 553.84 against JELD-WEN, the

parent or successor of Caradco. (Id.). JACOBSON’s claim against JELD-WEN

arises from JELD-WEN’s actions in 2003 through 2005, when it replaced (or

instructed a third party to replace) many of the doors and windows in the home

without first obtaining a permit. (A-3).

In accordance with the Trial Court’s order entered February 3, 2010,

granting in part, S&P’s Motion to Dismiss the Second Amended Complaint,

Appellant filed his Third Amended Complaint on March 3, 3010. (A-4).

JACOBSON’s Third Amended Complaint provides:

49. Defendant JELD-WEN’s act of replacing the windows and doors without first obtaining a permit or approval from the building official is a violation of the Florida building code and therefore, Part IV of Chapter 553 of the Florida Statutes.

50. Section 104.1 entitled Permit Application of the 2001

Florida Building code, the code in effect at the time of JELD-WEN’s replacement of the doors and windows, in


STOK FOLK + KON


7

pertinent part, states:

Any owner, authorized agent, or contractor who desires to construct, enlarge, repair, move, demolish, or change the occupancy or occupant content of a building or structure, or any outside area being used as part of the building’s designated occupancy (single or mixed) or to erect, install, enlarge, alter, repair remove, convert, or replace and electrical, gas, mechanical or plumbing system, the installation of which is regulated by the technical codes, or to cause any such work to be done, shall first make application to the building official and obtain the required permit for the work.

51. Furthermore, Section 104.1.4 entitled Minor Repairs states

“Ordinary minor repairs may be made with the approval of the building official without a permit, provided that such repairs shall not violate any of the provision of the technical codes.”

52. JELD-WEN replaced certain windows and doors in the JACOBSON home without first applying for a permit and without obtaining approval from the building official in violation of the 2001 Florida Building code.

53. Defendant JELD-WEN knew or should have known that these building code violations existed.

(Id.).

JELD-WEN unsuccessfully moved to dismiss JACOBSON’s Third

Amended Complaint based upon a statute of limitations argument. (A.-8)

Motions for Summary Judgments

On September 14, 2011, JACOBSON filed a Partial Motion for Summary


STOK FOLK + KON


8

Judgment against S&P and Appellee JELD-WEN on Count II of JACOBSON’s

Third Amended Complaint for their respective violations of the South Florida

building code. (A-9). The Motion attached the affidavit of JACOBSON, and

reference the record deposition testimony of Raul Pinon, the chief building

inspector of the City of Coral Gables, and Jamie Gaskon, the Chief of the Product

Control Division for the Miami-Dade Code Compliance Division. (Id.).

As described therein, both Raul Pinon and Jamie Gaskon testify that the

installation of doors and window must be applicable with all building codes.

Q: Okay. In order to put certain products into windows in someone’s house in Coco Plum, do they have to be approved by the Miami-Dade County? A: Pinon Answer: Of Course

See Pinon Deposition (A-9, Ex C, page 7, lines 13-16) (hereinafter “Pinon Deposition”).

On December 19, 2011, JELD-WEN filed a [Cross] Motion for Summary

Judgment on JACOBSON’s Third Amended Complaint. (R at 7-12).

Both Appellant’s Motion and Appellee’s Cross Motion were denied at a

hearing on February 8, 2012. (R. at 13); see also hearing transcript (A-10).

On September 7, 2012, JACOBSON filed an Amended Motion for Summary

Judgment on Count II of the Third Amended Complaint and on September 18,

2012, JELD-WEN filed a Renewed [Cross] Motion for Summary Judgment on

JACOBSON’s Third Amended Complaint. (R. at 21-57).


STOK FOLK + KON


9

Appellee’s Renewed Motion made the same three arguments that had

previously been raised and rejected in Appellee’s original Motion. (R. at, 7-12, and

51-57). In sum, Appellee argues that:

1. The Florida Building Code and Section 104.1 do not require

a new building permit for warranty replacement of door

panels and window sash;

2. That JELD-WEN, as a manufacturer, cannot violate Fla.

Stat. § 553.84 as a matter of law, as it was not the party

actually installing the replacement windows and doors; and

3. JACOBSON’s claims were barred by the statute of

limitations of four years [from the installation of the doors

from 2003 through 2005 to the filing of the Complaint in

2009].

On February 5, 2014, the Trial Court conducted a hearing on JELD-WEN’s

Renewed Motion for Summary Judgment and granted the relief sought. (R at 241-

242).

Although not specified in the Trial Court’s Final Order, the Trial Court

granted JELD-WEN’s Summary Judgment based on JELD-WEN’s second

argument and made an oral ruling that JACOBSON could not maintain an action

against JELD-WEN, as a matter of law, because JELD-WEN, as a manufacturer


STOK FOLK + KON


10

and supplier of materials, could not violate the Fla. Stat. § 553.84. (Id.)

The instant appeal followed. (R. at 236-340).

SUMMARY OF THE ARGUMENT

The April 4, 2013 Final Order must be reversed as the Trial Court ignored

Florida’s well settled law that the principle is liable for the acts of his agent, and

made an erroneous ruling that JELD-WEN is a manufacturer, not subject to the

mandates of the South Florida Building code. Although this is the sole basis that

the Trial Court ruled in favor of Appellee, as there is no transcript of the subject

hearing, this Brief will address and dispel all three of JELD-WEN’s three

arguments raised in its Renewed Motion for Summary Judgment, including: i) that

the Florida Building Code and Section 104.1 do not require a new building permit

for warranty replacement of door panels and window sash; ii) that JELD-WEN, a

manufacturer, cannot violate Fla. Stat. § 553.84 as a matter of law, as it was not the

party actually installing the replacement windows and doors; and iii) that

JACOBSON’s claims are barred by the statute of limitations.1

1 Where appeal is from summary judgment, appellant must merely bring up the summary judgment record, that is, the motion, supporting and opposing papers, and other matters of record which were pertinent to the summary judgment motion; it is not necessary to procure a transcript of the summary judgment hearing. Gonzalez v. Chase Home Fin. LLC, 37 So. 3d 955 (Fla. 3d DCA 2010)


STOK FOLK + KON


11

STANDARD OF REVIEW

An order granting summary judgment is a final order that is subject to

review by appeal. West's F.S.A. R.App.P.Rule 9.130(a)(3)(A). The standard of

review as to whether the trial court erred in granting summary judgment in favor of

JELD-WEN is de novo, since it concerns a question of law. Volusia County v.

Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). On appeal of a

summary judgment, the District Court of Appeal must consider the evidence

contained in the record, including any supporting affidavits, in the light most

favorable to the nonmoving party. Gallagher v. Dupont, 918 So. 2d 342 (Fla. 5th

DCA 2005).

Similarly, a motion for summary judgment may be granted by the Trial

Court only “if the pleadings, depositions, answers to interrogatories, admissions,

affidavits, and other materials ... show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” Fla. R. Civ. P. 1.510(c). The burden is on the moving party to demonstrate

that the other party unquestionably cannot prevail. Gomes v. Stevens, 548 So.2d

1163 (Fla. 2d DCA 1989); Snyder v. Cheezem Dev. Corp., 373 So.2d 719 (Fla. 2d

DCA 1979). The moving party must show conclusively the absence of any genuine

issue of material fact [,] and the court must draw every possible inference in favor

of the party against whom a summary judgment is sought. Wills v. Sears, Roebuck

https://a.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000006&cite=FLSTRCPR1.510&originatingDoc=I17cc7737794e11df86c1ad798a0ca1c1&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)

https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1989123069&pubNum=735&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)






STOK FOLK + KON


12

& Co., 351 So.2d 29 (Fla.1977); Holl v. Talcott, 191 So.2d 40 (Fla.1966). A

summary judgment should not be granted unless the facts are so crystallized that

nothing remains but questions of law. Shaffran v. Holness, 93 So.2d 94 (Fla.1957);

Moore v. Morris, 475 So.2d 666, 668 (Fla.1985); accord Buck v. Hardy, 106 So.2d

428, 428–29 (Fla. 3d DCA 1958). Under this rigorous standard to grant a

summary judgment, it is clear that the Trial Court committed reversible error.

Thus, the Final Order must be reversed.

ARGUMENT

A. JELD-WEN Was Required to Comply with the South Florida Building Code By Obtaining a Permit for the Replacement of the Doors and Windows in JACOBSON’s Home

Fla. Stat. § 553.84, expressly creates a private statutory cause of action on

behalf of any person damaged as a result of a violation of Part IV of Chapter

553 of the Florida Building Code, against the party or parties committing the

violation. Fla. Stat. § 553.84 applies to a subcontractor such as co-defendant S&P

and Appellee JELD-WEN, who orchestrated the Replacement doors and windows in

JACOBSON’s home. .

Section 104.1 entitled Permit Application of the 2001 Florida Building

code, the code in effect at the time of JELD-WEN’s replacement of the doors

and windows, as cited to in the Third Amended Complaint and discussed in

JACOBSON’s Motion for Summary Judgment, in pertinent part, provides:




https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1985133978&pubNum=735&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)#co_pp_sp_735_668




STOK FOLK + KON


13

Any owner, authorized agent, or contractor who desires to construct, enlarge, repair, move, demolish, or change the occupancy or occupant content of a building or structure, or any outside area being used as part of the building’s designated occupancy (single or mixed) or to erect, install, enlarge, alter, repair remove, convert, or replace and electrical, gas, mechanical or plumbing system, the installation of which is regulated by the technical codes, or to cause any such work to be done, shall first make application to the building official and obtain the required permit for the work.

JELD-WEN, the authorized agent, who repaired the JACOBSON’s home, was

under a statutory duty to JACOBSON to design, develop, construct, deliver, and

install materials in JACOBSON’s home in compliance with all applicable building

codes and regulations in existence at the time of such design, development,

construction, delivery and installation of the materials for JACOBSON home.

Under the facts of this case, JELD-WEN, an authorized agent, making repairs, was

required to obtain a permit.

Appellee JELD-WEN’s act of replacing the windows and doors without

first obtaining a permit or approval from the building official is a violation of the

Florida building code and therefore, Part IV of Chapter 553 of the Florida

Statutes. ProWindows, who may have physically installed the Replacement

doors and windows, was acting at the direct instruction and control of JELD-

WEN. Villazon v. Prudential Health Care Plan, Inc., 843 So. 2d 842 (Fla. 2003).

Based upon the summary judgment evidence. JELD-WEN provided the


STOK FOLK + KON


14

replacement products to be installed in the JACOBSON home, sent replacement

products to the JACOBSON home, and instructed ProWindows to install the

replacement products and then paid for the labor for ProWindows to install the

doors and windows.

Furthermore, Section 104.1.4 entitled Minor Repairs states “Ordinary

minor repairs may be made with the approval of the building official without a

permit, provided that such repairs shall not violate any of the provision of the

technical codes.” The Replacement of Windows is “considered a major

structural repair which shall meet the code requirements for new buildings.”

See Section 3401.8.3.2(a) 2001 Florida Building code. JELD-WEN replaced

over 50% of the windows and doors in the JACOBSON home without first

applying for a permit and without obtaining approval from the building official in

violation of the 2001 Florida Building code. Furthermore, it was adduced below

that the Replacement windows are not Miami-Dade product approved.

The Appellee below attempted to rely on general statements and

conclusions of law in the Affidavit of Dale Corwin for the proposition that there

was no requirement to obtain a permit. However, the rule simply is that the burden

to prove the nonexistence of a genuine triable issue is on the moving party, JELD-

WEN, and the burden of proving the existence of such issues is not shifted to the

opposing party until the movant has successfully met its burden. The affidavit of


STOK FOLK + KON


15

Dale Corwin is insufficient. See Seinfeld v. Commercial Bank & Trust Co., 405

So.2d 1039 (Fla. 3d DCA 1981) (recognizing that general statements in an

affidavit which are framed in terms only of conclusions of law do not satisfy a

movant's burden of proving the nonexistence of a genuine material fact issue)

(emphasis in original); Hurricane Boats, Inc. v. Certified Indus. Fabricators, Inc.,

246 So.2d 174 (Fla. 3d DCA 1971) (affidavit in support of summary judgment

may not be based on factual conclusions or conclusions of law).

Under the clear language of the South Florida Building Code, JELD-WEN

was required to first obtain a permit. It failed to do so. Therefore, on this basis,

the Trial Court did not and could not have granted judgment in Appellee’s favor.

B. The Trial Court Committed Reversible Error by Making the Determination that JELD-WEN was a Mere Manufacturer/Supplier of Materials During the Replacement of Doors and Windows in JACOBSON’s Home

In this case, JELD-WEN was not acting as a manufacturer when it provided

ProWindows with the Replacement products and instructed it to install same in

JACOBSON’s home. Under an agency theory, Jeld-Wen was responsible under

the Fla. Stat. § 553.84. Essential to the existence of an actual agency relationship is

(1) acknowledgment by the principal that the agent will act for him, (2) the agent's

acceptance of the undertaking, and (3) control by the principal over the actions of

the agent. Villazon v. Prudential Health Care Plan, Inc., 843 So. 2d 842 (Fla.

2003).


STOK FOLK + KON


16

When one considers an action based on actual agency, it is the right to

control, rather than actual control, that may be determinative. Id. In this case, Dale

Corwin, the representative of Jeld-Wen, admits in his deposition, that it provided

then replacement products to be installed in JACOBSON’s home, it sent

replacement products to JACOBSON’s home, it contacted ProWindows to install

the replacement products and then it paid for the labor for ProWindows to install

the doors.2 Under these facts, JELD-WEN was not a manufacturer immune from

Fla. Stat. § 553.84. Therefore, even if JELD-WEN was a manufacturer and/or supplier

of the materials, it clearly was not acting in that capacity during the Replacement of the

doors and windows in JACOBSON’s home.

C. JACOBSON Timely Filed its Action Against JELD-WEN within the Four (4) Year Statute of Limitation Period.

JACOBSON timely filed its action against JELD-WEN within four (4) years of

JELD-WEN’s misconduct and therefore, JELD-WEN’s argument that the action is

barred by the statute of limitations cannot be a basis for granting JELD-WEN summary

2 Q. Who supplied the labor?

A. The labor was paid for by Jeld-Wen, Inc., and as I now understand provided by ProWindow, Inc. …

Q. I’m asking you who when ProWindows was hired made the determination that they weren’t required to be licensed?

A. Jeld-Wen


STOK FOLK + KON


17

judgment. It is well-settled that a cause of action does not always begin to accrue

upon the initial misconduct a defendant. Rather, where there is a serial

performance by the party, accrual of cause of action commences upon the

occurrence of the last malfeasant act of the defendant. Zenith Radio Corp. v.

Hazeltine Research, Inc., 401 U.S. 321 (1971) (‘[w]hen a continuing [violative act]

is alleged, a cause of action accrues each time a plaintiff is injured by an act of the

defendants”); see also Allapattah Services, Inc. v. Exxon Corp., 188 F.R.D. 667,

679 (S.D. Fla. 1999) aff'd, 333 F.3d 1248 (11th Cir. 2003); see also Pearson v.

Ford Motor Co., 694 So.2d 61, 68-69 (Fla. 1st DCA 1997).

JACOBSON testifies in his answers to Interrogatories, that “[m]ultiple door and

window panels were replaced in 2005 and 2006, by ‘ProWindows’ and ‘Window

Professional’ at the direction of JELD-WEN.” (A.-13 b). It’s also clear from the record

that JACOBSON filed his Motion to Amend to add JELD-WEN as a Defendant in

November 2009, which amended pleading was deemed filed on December 17, 2009.

These facts alone establish that the four (4) year statute of limitations does not bar the

action.

A statute of limitations “runs from the time the cause of action accrues”

which, in turn, is generally determined by the date “when the last element

constituting the cause of action occurs.” § 95.031, Fla. Stat. (1987). Hearndon v.

Graham, 767 So. 2d 1179, 1184-85 (Fla. 2000). JACOBSON testifies in his


STOK FOLK + KON


18

affidavit, as follow:

21. This process from the time of the replacement doors and windows were sent to my home to them being finally installed in my home took several months. The last of the replacement doors and windows were not installed by the JELD-WEN’s agents in my home late in 2005.

22. About eighteen (18) to twenty (24) months later, the wood

casing surrounding the replacement doors and windows likewise began to rot and deteriorate rapidly.

(R. at 14-20)

Assuming, arguendo, that JACOBSON did not file within the four year

statute of limitation of the Replacement of the doors and windows, in this case,

the delayed discovery doctrine tolls the statute of limitations. The “delayed

discovery” doctrine generally provides that a “cause of action does not accrue

until the plaintiff either knows or reasonably should know of the tortious act

giving rise to the cause of action.” Hearndon v. Graham, 767 So.2d 1179, 1184

(Fla. 2000); see Hillsborough Community Mental Health Ctr. v. Harr, 618 So.2d

187, 189 (Fla.1993); Creviston v. General Motors Corp., 225 So.2d 331, 334

(Fla.1969) (explaining that the “accrual of the [underlying cause of action] must

coincide with the aggrieved party's discovery or duty to discover the act

constituting an invasion of his legal rights”).

JACOBSON did not discover the violation of the building code until two

years after their installation (sometime in 2007). A latent defect is “not apparent by


STOK FOLK + KON


19

use of one's ordinary senses from a casual observation of the premises or ‘hidden

from the knowledge as well as from the sight and ... not [discoverable] by the

exercise of reasonable care[.] ” Saltponds Condo. Ass'n, Inc. v. McCoy, 972 So. 2d

230, 232 (Fla. 3d DCA 2007).

Therefore, the action against Jeld-Wen was commenced within two (2)

years after the discovery of the latent defect and clearly within the four (4)

statute of limitations pursuant to Fla. Stat. § 95.11(3)(a).

CONCLUSION

As there is no valid basis which Appellee, JELD-WEN, could be granted

Summary Judgment on Count II of Appellant’s Third Amended Counterclaim, this

Court must reverse the Trial Court’s April 4, 2013 Final Order.


STOK FOLK + KON


20

CERTIFICATE OF COMPLIANCE

I hereby certify that this Initial Brief complies with the font requirements of Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure.

By: _/s/DANIEL M. BRENNAN_______ DANIEL M. BRENNAN, ESQ.

Florida Bar No. 43395

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the above and foregoing Initial Brief was electronically filed through e-DCA and was emailed to: Mark D. Tinker, Esq., ([email protected]; [email protected]; [email protected]), Banker Lopez Gassler, P.A., 501 1st Avenue North, Suite 900, St. Petersburg, Florida this 20th day of March, 2014.

Respectfully submitted, STOK FOLK + KON Attorneys for Appellant 18851 N.E. 29th Avenue, Suite 1005 Aventura, Florida 33180 TEL: (305) 935-4440 Primary email: [email protected] Secondary email: [email protected] [email protected] BY:_/s/ DANIEL M. BRENNAN___ ROBERT A. STOK, ESQ. Florida Bar No. 857051

DANIEL BRENNAN, ESQ. Florida Bar No. 43395








appellant’s initial brief stok folk kon - fl courts · initial brief case no. 3d12-1592 ii stok...

Documents