PLAINTIFF'S AMENDED RESPONSE TO DEFENDANT'S KARINS ENGINEERING GROUP INC MOTION FOR JUDGMENT IN ACCORDANCE WITH MOTIONS FOR DIRECTED VERDICT ON COUNTS III AND IV May 30, 2017 (2024)

 
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 Filing # 57034137 E-Filed 05/30/2017 10:25:36 AMIN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FORSARASOTA COUNTY, FLORIDA CIVILACTIONMAJOR TRIAL DIVISION TJAMES A. ARMOUR, 4449 HOLDINGS, LLC,a Florida Limited Liability Company,Plaintiffs,V. Case No. 2010 - CA - 000046 - NCDAVID G. KARINS, an individual, KARINSENGINEERING GROUP, INC., a FloridaCorporation, J.T. FEENEY, INC. D/B/A JOHNFEENEY ROOFING, a Florida Corporation,W.R. GRACE & CO., a Foreign Corporation,Defendants.PLAINTIFFS’ AMENDED RESPONSE TODEFENDANT?’S, KARINS ENGINEERING GROUP,INC., MOTION FOR JUDGMENT IN ACCORDANCE WITHMOTIONS FOR DIRECTED VERDICT ON COUNTS III AND IVPLAINTIFFS, JAMES A. ARMOUR, INDIVIDUALLY, and as TRUSTEE OF THEBAY SHORE ROAD TRUST U/A/D OCTOBER 1, 2008, 4449 HOLDINGS, LLC, and THEBAY SHORE ROAD TRUST U/A/D OCTOBER 1, 2008 (collectively “Armour’), herebyrespond to DEFENDANT’S, KARINS ENGINEERING GROUP, INC. (“KEG”), Motion forJudgment in Accordance with Motion for Directed Verdict on Counts III and IV, dated May 8,2017 (“Motion”), as follows:BACKGROUNDl, The issues raised by KEG in its Motion were previously addressed by the Court atthe close of Armour’s case and at the close of all evidence. At that time, KEG moved fordirected verdict as to Counts III (Professional Negligence) and IV (Building Code Violations).Filed 05/30/2017 10:28 AM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FLThe Court reserved ruling on KEG’s motions for directed verdict, and on April 21, 2017, the juryreturned a verdict in favor of Armour on Counts HI and IV. Through its Motion, KEG requeststhe Court to set aside the jury verdict as to Counts III and IV.2. KEG argues in its Motion that the jury verdict should be set aside because: (1)there is no evidence of the professional standard of care pertaining to a structural engineers’certifications or deviation from such standard (Count ITI); and (1) there is no evidence that KEGviolated the Building Code (Count IV).3, However, KEG mischaracterizes the evidence introduced at trial. For example:(i) the Karins Letters dated September 8, 2008, September 11, 2008, and September 29, 2008(the “Code Plus Letters”) clearly set the standard of care for KEG; (11) there was trial testimonyregarding the standard of care; and (1) Armour sought to introduce a rebuttal expert, which theCourt excluded, who disputed Mr. Bracken’s claim that there was nothing in the Code PlusLetters authored by KEG that fell below the required standard of care.THE CODE PLUS LETTERS4, KEG’s letter to Howard Jacobs, dated September 8, 2008 (“KEG’s FirstLetter”), provides, in relevant part, as follows:Karins Engineering Group, Inc. (CEG) has performed structuralengineering services for the Jacobs Residence including design offoundations and structural components, design of site and grading,inspection of structural component construction, andmiscellaneous consulting on waterproofing and other buildingcomponent issues.KEG hereby certifies that the residence meets or exceeds allstructural requirements of the Florida Building Code, 2004Edition (current at the time of construction) as well as thestructural and site requirements of the Federal EmergencyManagement Admunistration/National Flood Insurance Program(FEMA/NFIP) rules and regulations required by Florida andFlorida Statute. Building foundations, break-away constructionPage 2 of 38below the NFIP flood elevation, site work and grading are alldesigned to perform as specified by rule and regulation.Several features of the residence significantly exceed Coderequirements. One of these features is the construction of thewalls. They are reinforced concrete masonry unit walls withall vertical cells grouted. On the exterior surface of the wallstructure, a drainage plane is created using seli-adheringmembrane, which is appropriately flashed furred and finished.The exterior finish includes a second drainage plane thatconsists of paper-backed wire lath and stucco installedaccording to ASTM C926. All connections of furring, lath andaccessories are designed and specified to resist component andcladding wind loads. Installation of wall components wasinspected by KEG during construction.A second feature is the design of the floors. Floors weredesigned to deflect approximately 1/2 that permissible byCode. The design required to achieve this extra stiffnessresults in a structure also is (sic) capable of resistingsignificantly higher loads than required by Code.A third feature 1s the roofing system. Roof sheathing is 5/8” thickstructural plywood fastened using construction adhesive, screwsand ring-shank nails rather than the Building Code minimum OSBsheathing panels and smooth-shank nails. The waterproofingmembrane includes two layers of fully . self-adheringmembrane.Additional features include but are not limited to the use ofinsulation and subfloor materials to control noise and vibration andto increase efficiency; and the use of a commercial elevator in lieuof a residential elevator.We trust this information is helpful. Should questions arise,please do not hesitate to call. (emphasis added).A true and correct copy of KEG’s First Letter is attached to this Response as Exhibit“495, In addition to the representations contained in KEG’s First Letter, KEG’s letter toHoward Jacobs, dated September 11, 2008 (‘KEG’s Second Letter”), added the followingrepresentations:Page 3 of 38Though not indicated on the structural drawings, KEG herebycertifies that the as-built structural capacities of all structuralcomponents meet or exceed wind loading requirements forMiami Dade County (147 mph wind velocity), including butnot limited to fenestrations, wall cladding assemblies, roof andelevated deck framing components and truss anchorages.Capacities of shearwalls, horizontal diaphragms, columns,foundations and rear glass canopy components significantly exceedwind loading requirements of Miami Dade County.In addition to structural and wind load compliance describedabove, several features of the residence significantly exceedlocal Code requirements. One of these features is theconstruction of the walls. They are reinforced concretemasonry unit walls with all vertical cells grouted. On theexterior surface of the wall structure, a drainage plane iscreated using self-adhering membrane, which is appropriatelyflashed, furred, and finished. The exterior finish includes asecond drainage plane that consists of paper-backed wire lathand stucco installed according to ASTM C926. All connectionsof furring, lath and accessories are designed and specified toresist component and cladding wind loads. Installation of wallcomponents was inspected by KEG during construction.A second feature is the design of the floors. Floors weredesigned to deflect approximately 2 that permissible by Code.The design required to achieve this extra stiffness results in astructure also is (sic) capable of resisting significantly higherloads than required by Code.A third feature is the roofing system. Roof sheathing is 5/8” thickstructural plywood fastened using construction adhesive, screwsand ring-shank nails rather than the Building Code minimum OSBsheathing panels and smooth-shank nails. The waterproofingmembrane includes two layers of fully = self-adheringmembrane.Additional features include but are not limited to the use ofinsulation and subfloor materials to control noise and vibration andto increase efficiency; and the use of a commercial elevator in lieuof a residential elevator.We trust this information is helpful. KEG certifications andsystem characterizations contained herein are based on ourobservations of work-in-progress and analysis. They shall notsupplant the Contractor’s obligation to construct in accordancePage 4 of 38with record documents or any of its other obligations. Shouldquestions arise, please do not hesitate to call. (emphasis added).A true and correct copy of KEG’s Second Letter is attached to this Response as Exhibit“76, In addition to the representations contained in KEG’s First and Second Letters,KEG’s letter to James A. Armour, dated September 29, 2008 (“KEG’s Third Letter’), addedthe following representation:We trust this information is helpful; Mr. Armour may rely on theinformation contained herein. (emphasis added).A true and correct copy of KEG’s Third Letter is attached to this Response as Exhibit“39ARGUMENTL. KEG’s Code Plus Letters Clearly Set the Standard of Care for KEG.7. KEG’s Code Plus Letters contained unequivocal representations that wereintended to induce reliance on their contents. By way of example and not limitation, the CodePlus Letters contained the following representations and assertions:(a) “performed... inspection of structural component construction”;(b) “the residence meets or exceeds all structural requirements of the Florida BuildingCode”;(c) “all vertical cells [are] grouted”;(d) The drainage plane “is appropriately flashed furred and finished”;(ec) The “exterior finish includes a second drainage plane that consists of paper-backed wire lath and stucco installed according to ASTM C926”;(f) “Installation of wall components was inspected by KEG during construction”;(g) “the as-built structural capacities of all structural components meet or exceedwind loading requirements for Miami Dade County (147 mph wind velocity)”;Page 5 of 38(h) “KEG certifications and system characterizations contained herein are based onour observations of work-in-progress and analysis”;(i) “Floors were designed to deflect approximately 2 that permissible by Code”;(j) “Mr. Armour may rely on the information contained herein”;8. The record evidence introduced at trial unmistakably showed that therepresentations and certifications in the Code Plus Letters were untrue. Additionally, the trialtestimony demonstrated that the inspections and observations described in the KEG Code PlusLetters never occurred. In fact, David Karins testified that neither he, nor anyone from KEG,performed any of the inspections and observations described in the Code Plus Letters, whichinspections and observations were necessary in order to certify the as-built condition of theArmour residence.9, Armour’s claim against David Karins and KEG is different from a design-relatedprofessional negligence claim against an engineer. The Code Plus Letters contain absolutecertifications that were meant to be relied upon, and in fact were relied upon, by foreseeable thirdparties, including Armour.10. David Karins admits that actual inspections were required in order to verify theas-built condition of the residence and that such inspections never occurred. Relevant portionsof Mr. Karins’ trial testimony is as follows:(Page 4182)l Q What inspections would you need to do inorder to verify the as-built condition of 4449 BayShore Road on September 29th of 2008?A I would have to do the structural limitsof the property, the foundation, the columns, thewalls, the trusses. All of the structural elements.Q For example, you were shown pictures ofsome cut trusses at the barrel attic roof area?A Yes.Q And would you have had to inspect thoseOO NM hb WH NYpom,=Page 6 of 3811 trusses in order to see their as-built condition?12 A Yes.13 Q_ In terms of the mansard roof and its14 attachment to the roof, you would have had to15 inspect it in order to be able to give an opinion on16 its as-built condition?17 A Yes.18 Q You did not do that because the last time19 you were at the Armour residence was May of 2007?20 A That's correct.Trial Transcript, dated March 21, 2017, Vol. 17. (emphasis added). A true and correctcopy of the above excerpt is attached to this Response as Exhibit “4.”ll. The Code Plus Letters attest to the following as-built conditions: “On theexterior surface of the wall structure a drainage plane is created using self-adheringmembrane, which is appropriately flashed furred and finished. The exterior finishedincludes a second drainage plane that consists of paper-back wire lath and stucco installedaccording to ASTM C926.”12. David Karins testified at trial that he did not know whether that statement wastrue because he never made the requisite inspections to confirm the accuracy of the certification.Relevant portions of Mr. Karins’ testimony is as follows:(Page 3721)7 Q_ Next it says, The exterior finish includes a8 second drainage plane that consists of paperback wire9 lath.10 Do you know if that was stainless steel lath11 or was it --12 A I don't know for sure. I believe there was a13. proposal to install stainless lath later on, but that14 that really wasn't the topic of our discussion.Trial Transcript, dated March 20, 2017, Vol. 16. (emphasis added). A true and correctcopy of the above excerpt is attached to this Response as Exhibit “5.”Page 7 of 3813. Mr. Karins further testified as follows:(Page 3729)3 Q Do you know whether the stucco was applied4 that way, yes or no?5 A I believe I just specifically answered that6 question. I do not know if every individual spot is7 applied in a conformance to ASTM C926, because I didn't8 inspect it.Trial Transcript, dated March 20, 2017, Vol. 16. (emphasis added). A true and correctcopy of the above excerpt is attached to this Response as Exhibit “6.”14. David Karins admits that to confirm whether the drainage plane system wasproperly flashed, furred, and finished an inspection was required, which inspection neveroccurred. Mr. Karins testified, in relevant part, as follows:(Page 4184)25 Q_ If you were going to state that the(Page 4185)1 drainage plane system was flashed, furred, and2 installed correctly, what would you have to do?3 A Verify.4 Q And how would you verify?5 A Come to the job site and observing what6 was listed to be in place was actually in place.7 Q You've never looked at any design drawings8 for the drainage plane system?9 A No, I didn't.10 Q You've never made any inspections of the11 drainage plane system?12 A That is correct.Trial Transcript, dated March 21, 2017, Vol. 17. (emphasis added). A true and correctcopy of the above excerpt 1s attached to this Response as Exhibit “7.”15. The Code Plus Letters also certify that the fenestrations, wall cladding assemblies,roof and elevated deck framing components, and truss anchorages meet or exceed the MiamiDade wind loading requirements. The Code Plus Letters provide, in relevant part, as follows:Page 8 of 38Though not indicated on the structural drawings, KEG herebycertifies that the as-built structural capacities of all structuralcomponents meet or exceed wind loading requirements forMiami Dade County (147 mph wind velocity), including butnot limited to fenestrations, wall cladding assemblies, roof andelevated deck framing components and truss anchorages.16. David Karins admitted at trial that KEG never inspected the fenestrations to beable to certify that the as-built conditions met or exceeded the requirements of the FloridaBuilding Code, or the Miami Dade wind loading requirements. Relevant portions of Mr. Karins’trial testimony is as follows:(Page 3727)6 Q_ With respect to the fenestrations in the7 residence, isn't it true that you testified that you did8 zero inspections of the fenestrations?9 A That's true.10 Q Isn't it true that you said your stuff [sic] did not11 do any inspections of the fenestrations?12 A That's true.13 Q Isn't it true that you've testified, under14 oath, that at the time that you wrote these letters, you15 did not know how the stucco had been installed?16 A Well, there was a great deal of testimony over17 the past, what is this 2017, 13 years that I've been18 involved in this project, and the intention of our -- of19 any testimony that I have made 1s that I did not20 specifically know about individual examples of how the21 stucco was installed, but I did have numerous22 discussions with Mr. Voigt and Mr. Jacobs about how to23 install stucco.Trial Transcript, dated March 20, 2017, Vol. 16. (emphasis added). A true and correctcopy of the above excerpt ts attached to this Response as Exhibit “8.”Page 9 of 3817. Mr. Karins further testified as follows:(Page 4063)18 Q_ Sir, you've heard allegations with respect19 to the window and door bucks. Did KEG as an20 engineering group inspect the windows and door21 bucks.22 A We did not inspect the window and door23 bucks.Trial Transcript, dated March 21, 2017, Vol. 17. (emphasis added). A true and correctcopy of the above excerpt is attached to this Response as Exhibit “9.”18. Mr. Karins additionally testified as follows:(Page 4104)2 Q_ And did you, sir, inspect the windows and3 doors and their attachment, waterproofing, before4 signing this document.5 A No.Trial Transcript, dated March 21, 2017, Vol. 17. (emphasis added). A true and correctcopy of above excerpt 1s attached to this Response as Exhibit “10.”19. Mr. Karins also testified as follows:(Page 4179)5 Q Okay. Did you ever inspect windows on6 this project?7 A No.8 Q___ Did you ever inspect doors on this9 project?10 A No, I did not.Trial Transcript, dated March 21, 2017, Vol. 17. (emphasis added). A true and correctcopy of the above excerpt 1s attached to this Response as Exhibit “11.”20. David Karins admitted at trial that KEG never actually inspected the wallcladding assemblies so as to certify that the as-built condition met or exceeded the Miami Dadewind loading requirements. Relevant portions of Mr. Karins’ testimony is as follows:Page 10 of 38(Page 3730)Q Did you inspect the drainage plane systemprior to writing the letter?A I did not inspect the drainage plane systemprior to writing the letters.Q__ Did you look at any of the conduit mechanicalboxes or fenestrations through the drainage plane systemprior to writing the letters?A I did not.Sr~ IA nn kh WwW NTrial Transcript, dated March 20, 2017, Vol. 16. (emphasis added). A true andcorrect copy of the above excerpt is attached to this Response as Exhibit “12.”21, Mr. Karins further testified as follows:(Page 3738)Q Did you personally make any inspections of the3 waterproofing installations?4 A I did not make inspections of the5 waterproofing installations.6 Q__ Did your staff?7 A No.Trial Transcript, dated March 20, 2017, Vol. 16. (emphasis added). A true and correctcopy of the above excerpt is attached to this Response as Exhibit “13.”22. David Karins admitted at trial that KEG never actually inspected the roof andelevated deck framing components, or the truss anchorages so as to certify that the as-builtconditions met or exceeded the Miami Dade wind loading requirements. Relevant portions ofMr. Karins’ testimony is as follows:(Page 4182)10 Q And would you have had to inspect those11 trusses in order to see their as-built condition?12 A Yes.13 Q In terms of the mansard roof and its14 attachment to the roof, you would have had to15 inspect it in order to be able to give an opinion on16 its as-built condition?17 A Yes.18 Q You did not do that because the last timePage 11 of 3819 you were at the Armour residence was May of 2007?20 A That's correct.Trial Transcript, dated March 21, 2017, Vol. 17. (emphasis added). A true and correctcopy of the above excerpt is attached to this Response as Exhibit “14.”23. Mr. Karins further testified as follows:(Page 3791)21 Q Would you agree that there are codes that22 apply to the roof, elevated deck framing components and23 truss anchorages both for Miami-Dade and for Sarasota?24 A Yes.25 Q With respect to the rear glass canopy(Page 3792)1 components, as installed at the Armour residence, would2 you agree that you did not inspect or test that3 installation?4 A Yes.Trial Transcript, dated March 20, 2017, Vol. 16. (emphasis added). A true and correctcopy of the above excerpt is attached to this Response as Exhibit “15.”24. Mr. Karins additionally testified as follows:(Page 3806)2 Q Are the cut trusses at the barrel roof truss3 area, would you agree those are within your inspections?4 A No.5 Q Would you agree that the cut trusses are6 inconsistent with your drawings?7 A Yes. This picture is, yes.Trial Transcript, dated March 20, 2017, Vol. 16. (emphasis added). A true and correctcopy of the above excerpt is attached to this Response as Exhibit “16.”25. The Code Plus Letters further certify that the vertical fill cells have been grouted,as follows: “Several features of the residence significantly exceed Code requirements. One ofthese features is the construction of the walls. They are reinforced concrete masonry unitwalls with all vertical cells grouted.”Page 12 of 3826.David Karins testified at trial that the vertical fill cells were never inspected andthat the certification regarding the fill cells in the Code Plus Letters is not true. Relevantportions of Mr. Karins trial testimony is as follows:(Page 3754)6 Q Atsome point, Karins Engineering stopped7 inspecting the fill cells; is that true?8 A We didn't ever inspect the placement of9 concrete in the fill cells, but we did inspect10 reinforcement steel and the clean-outs.Trial Transcript, dated March 20, 2017, Vol. 16. (emphasis added). A true and correctcopy of the above excerpt is attached to this Response as Exhibit “17.”27,David Karins further testified as follows:(Page 3792)20 Q- What actually existed out at the residence on21 September 29th, 2008, would you agree with me that all22 vertical cells were not, in fact, in the as-built23 condition, grouted?24 A On the as-built drawings, all vertical cells25 are grouted. In the field, I don't know that all1 vertical cells are grouted. I, today, know that some2 were not.3 Q_ And you know, as of today, that on September4 29th of 2008, the as-built condition did not have all5 vertical cells grouted?6 A Is that a different -- did I answer that? I'm7 sorry.8 Q_ I'll try it again directly.9 On September 29th of 2008, isn't it true that10 ‘the as-built condition of the Armour residence did not11 have all vertical cells grouted? That's a yes or no.12 A Yes.Trial Transcript, dated March 20, 2017, Vol. 16. (emphasis added). A true and correctcopy of the above excerpt is attached to this Response as Exhibit “18.”Page 13 of 3828. Paula Barros Peno, KEG’s inspector, testified that in order to be able to providean opinion on, and certify the as-built condition of components of the residence, actualinspections of those components had to occur:(Page 4181)10 Q If you were going to give an opinion on11 the as-built condition of the Armour residence on12 September 29th of 2008, what would you have to do?13 A If I have --14 MR. DeLEO: Objection. Foundation.15 THE COURT: Overruled.16 BY MR. KOESTER:17 Q What would you have to do?18 A To do an opinion as far as what?19 Q_ As-built condition on September 28th of20 2009.21 A I would not know how to respond to that22 question because I'm not a designer.23 Q Of 2008.24 You do do field inspections?25 A Yes.(Page 4182)1 Q What inspections would you need to do in2 order to verify the as-built condition of 4449 Bay3 Shore Road on September 29th of 2008?4 A I would have to do the structural limits5 of the property, the foundation, the columns, the6 walls, the trusses. All of the structural elements.7 Q For example, you were shown pictures of8 some cut trusses at the barrel attic roof area?9 A Yes.10 Q And would you have had to inspect those11 trusses in order to see their as-built condition?12 A Yes.13 Q_ In terms of the mansard roof and its14 attachment to the roof, you would have had to15 inspect it in order to be able to give an opinion on16 its as-built condition?17 A Yes.18 Q You did not do that because the last time19 you were at the Armour residence was May of 2007?20 A That's correct.Page 14 of 38Trial Transcript, dated March 21, 2017, Vol. 17. (emphasis added). A true and correctcopy of the above excerpt is attached to this Response as Exhibit “19.”29. Jeff Parzych, Armour’s expert, testified that to certify an existing condition, youneed to remove the necessary sections of the structure to observe the underlying portions of thestructure. Relevant portions of Mr. Parzych’s trial testimony is as follows:(Page 2708)20 A. To verify the existing conditions, you would have to21 remove sections of the sheathing, stucco, to you allow22 observations of the underlying portions of the structure.23 BY MR. KOESTER:24 Q. With respect to the fill cells, what is your opinion25 on what would have to occur in order to locate and fix the(Page 2709)1 fill cells?2 A. Again, a similar technique. You would have to3 either do destructive testing, removing of the stucco, some of4 the face shell, or have to do an extensive amount of5S nondestructive testing.Trial Transcript, dated March 13, 2017, Vol. 11. (emphasis added). A true and correctcopy of the above excerpt is attached to this Response as Exhibit “20.”30. The Code Plus Letters specifically certify that the structural components of theresidence, such as the roof trusses, met the Miami Dade wind loading requirements. SamGreenberg, a structural engineer employed by Dansco, was responsible for ensuring that thetrusses were properly designed to meet the load specifications provided by KEG.31. Mr. Greenberg provided expert testimony at trial that the only way to verifywhether the design of the trusses met the requirements of the Florida Building Code and theMiami Dade wind loading requirements was by utilizing a software called MiTek.Page 15 of 3832. The relevant portion of Mr. Greenberg’s trial testimony is as follows:(Page 2723)15 Q. So in order to analyze the strength of the truss --16 and we'll use MiTek as an example -- 1f you're using a MiTek17 plate, do you have to use the MiTek software to understandthe18 strength of the truss?19 A. Correct. You've got to use the proprietarysoftware20 that matches the design of the plate.21 Q. Soif you were to use some other type of software,22 you're not going to come up with an accurate evaluation of the23 truss?24 A. If you don't use truss analysis software, you're not25 going to get the right answer.Trial Transcript, dated March 14, 2017, Vol. 12. (emphasis added). A true and correctcopy of the above excerpt is attached to this Response as Exhibit “21.”33. Sam Greenberg further testified that KEG designed the trusses to only meet the130 mph wind load requirements, not the higher Miami Dade wind load requirements. Relevantportions of Mr. Greenberg’s trial testimony are as follows:(Page 2727)9 Q. So Mr. Karins would specify to you -- ultimately10 would specify the wind load requirements, deflection, et11 cetera; is that correct?12 A. All the of the design requirements: which version13 of the building code it was under, the wind speed, the wind14 coefficients, anything that had to do with the design of the15 structure as it related to the trusses.16 Q. Okay. So the original -- what was the wind speed17 for the original truss design?18 A. 130 miles an hour.Trial Transcript, dated March 14, 2017, Vol. 12. (emphasis added). A true and correctcopy of the above excerpt is attached to this Response as Exhibit “22.”Page 16 of 3834. Mr. Greenberg testified that he tested the trusses using the MiTek software andthat the trusses did not meet the higher Miami Dade 147 mile per hour wind load requirements,Relevant portions of Mr. Greenberg’s trial testimony are as follows:(Page 2745)6 Q. And did you evaluate the trusses for compliance with7 the Miami-Dade 147?8 A. Weran the trusses using the MiTek software and9 increased the wind speed from 130 to 147 miles per hour.10 Q. What were results of your evaluation?1] A. Most of the short span trusses, the hip jacks, the12 short trusses under 14 or 15 feet seemed to be okay. It was13 the longer span trusses, those barrel trusses, those were not14 adequate any longer.15 Q. And did you -- why did you use the MiTek softwareto16 make that evaluation?17 A. That's a component and MiTek is the wind. Sothat's18 the obvious program to use when we've already designedthe19 trusses using MiTek to get the wind and the plates.Trial Transcript, dated March 14, 2017, Vol. 12. (emphasis added). A true and correctcopy of the above excerpt is attached to this Response as Exhibit “23.”35. The Code Plus Letters further certify the floor deflection, as follows: “Floorswere designed to deflect approximately '4 that permissible by Code. The design required toachieve this extra stiffness results in a structure also is capable of resisting significantlyhigher loads than required by Code.”36. Mr. Greenberg testified that KEG provided all of the criteria for the design of thefloor trusses, including the desired deflection in accordance with KEG’s design of the structure.Relevant portions of Mr. Greenberg’s trial testimony are as follows:Page 17 of 38(Page 2727)6—~]2425Q. So going back to your original involvement at theresidence, who was the engineer of record at that time?A. I believe Mr. Karins.Q. So Mr. Karins would specify to you -- ultimatelywould specify the wind load requirements, deflection, etcetera; is that correct?A. All the of the design requirements: which versionof the building code it was under, the wind speed, the windcoefficients, anything that had to do with the design of thestructure as it related to the trusses.Q. Okay. So the original -- what was the wind speedfor the original truss design?A. 130 miles an hour.Q. Were there any additional specifications thatMr. Karins had regarding deflection?A. They had a deflection limitation in the plans ofL/500.Q. So help explain to me what "deflection" is and what"L/500" means.A. You would have two supports -- I'm going to use my(Page 2728)fingers as the supports. If you took a yardstick and laid itflat between the two supports, as you load it, it pushesdownward; downward deflection. So you want to limit thatdeflection to the length of the truss, which is "L," ininches. So, argument's sake, it's a 30-foot truss. 30 times12 is 360, divided by 500; that fraction, that's the maximumfraction that you're allowed to deflect. If you exceed that,you've violated the deflection requirement in his drawings.Q. And was his deflection requirement in his drawings ahigher deflection standard than you would typically find?A. Typically for total load in floor systems, you wouldsee L/360 which gives you a larger allowable deflection.Deflections are governed by the building code; it'srecommended for different types of materials.A typical house would be L/360. If you have rigidceilings like a plaster ceiling rather than drywall, or rigidmaterials on a floor like marble or granite, you would want tohave a stiffer, less deflecting floor.Q. And you're aware that the original design intent wasfor stiffer floors in this home?A. Well, I know the deflection was limited. That'swhat the plans called for.Page 18 of 38Trial Transcript, dated March 14, 2017, Vol. 12. (emphasis added). A true and correctcopy of the above excerpt is attached to this Response as Exhibit “24.”37. Mr. Greenberg testified that KEG’s design and construction documents yieldedfloor trusses that were improper for the as-built construction and the change from lightweight tonormal weight concrete further exacerbated the loading and deflection structural deficiencies.Relevant portions of Mr. Greenberg’s trial testimony on the issue are as follows:(Page 2743)24 Q. And do you have an opinion as to whether or not the25 shift from lightweight concrete to normal weight concrete as(Page 2744)1 depicted in that ESI caused the need to do the repairs you2 drew?3 A. Like I said, it increased the loading and the4 deflection, so it needed to be addressed, yes.5 Q. So regardless of the amount of concrete that went6 onto the deck, you needed to address that issue, correct?7 A. Even when you look at the original or prescribed8 construction, the 35 pounds per square foot was not -- of dead9 load was not enough to account for the weight of the pavers,10 and even the lightweight concrete, it was more like 52 pounds11 per square foot was the original actual construction, which12 was in excess of the 35 and then it got increased up to 70.13 So the original trusses as we designed based on the14 information provided in the construction documents was not15 adequate for the actual construction.16 Q. And that -- is that true for all of the decks on the17 second floor?18 A. In particular, that rear deck that had the concrete19 and the pavers. There are other decks that were okay.20 Q. And then we get to, did you do an evaluation21 regarding the third level decks at the home?22 A. Some of them were okay, and some were not okay.23 Q. Okay. And the ones that needed changes were24 reflected in the repair detail?25 A. Correct. Whatever needed to be fixed was fixed or(Page 2745)1 replaced.Page 19 of 38Trial Transcript, dated March 14, 2017, Vol. 12. (emphasis added). A true and correctcopy of the above excerpt is attached to this Response as Exhibit “25.”38. Mr. Greenberg further testified as follows:4This area right here (indicating), is that one of5 the second-floor decks that you were discussing?67A. Here and then over there, I believe.Q. Okay. Do you have an opinion as to whether or not8 those decks met the original design criteria as constructed in9 the field?101112A. They did not.Q. And why did they not?A. Because the material that was installed exceeded the13 design loading that was provided by the contract document and14 incorporated into the truss designs.Trial Transcript, dated March 14, 2017, Vol. 12. (emphasis added). A true and correctcopy of the above excerpt is attached to this Response as Exhibit “26.”39, There is extensive record evidence adduced at trial relating to the deficienciesresulting from KEG’s professional negligence. For example, Paula Barros Peno testified that thedefects in the mansard roof would cause the roof to blow away in the event of a hurricane. Therelevant portion of her trial testimony is as follows:(Page 4185)13 Q_ Ifa window blows out of a home in a14 hurricane, what's the structural significance of15 that?16 A That means that the installation probably17 wasn't per documents.18 Q What is the effect on a home during a19 hurricane when a window blows out?20 A It can damage significantly the house.21 Q_ If there 1s an open area of the roof22 sheathing from, say, where the mansard roof comes up23 like a patio table in a hurricane, what would be the24 effect of wind getting in the underside of the roof?25 A It would probably blow away the roof.Page 20 of 38Trial Transcript, dated March 21, 2017, Vol. 17. (emphasis added). A true and correctcopy of the above excerpt is attached to this Response as Exhibit “27.”AO. Because the Code Plus Letters certified the as-built condition of the residencewhen KEG in fact did not perform the inspections and observations referenced in the Code PlusLetters, KEG automatically fell below the standard of care in authoring the Code Plus Letters.Similar engineers in the community would not certify that something meets or exceeds therequirements of the Florida Building Code, or the Miami Dade wind load requirements, withoutfirst inspecting and observing the items being certified.41. The Second District Court of Appeal made clear and certain in CH2M HillSoutheast, Inc. v. Pinellas County, Florida, 698 So.2d 1238 (Fla. 2d DCA 1997) that thelanguage used by the parties governs and creates the standard of care when dealing with anengineer. In this case, the Code Plus Letters unequivocally set the bar for what was required, andthe Code Plus Letters were not true. As set forth by the Second District Court of Appeal,sufficient evidence of the standard of care and its breach were presented and proven at trial. Therole of the Court in addressing a directed verdict motion or an appellate court review in thismatter is not to re-weigh the evidence.IL. Jeff Parzych Presented Evidence that Similar Engineers in the Community WouldNot Write the Code Plus Letters Authored by KEG.42. In its Motion for Judgment in Accordance with Motions for Directed Verdict,KEG admitted that Mr. Parzych, Armour’s expert, in fact testified that he would not have writtenor made the certifications contained in KEG’s Code Plus Letters. Relevant portions of Mr.Parzych’s trial testimony are as follows:y yPage 21 of 38(Page 2706)13 Q. With respect to the letter we had taken you through14 under Exhibit 446 -- do you remember going through that in15 your direct?16 A. Ido.17 Q. And you saw it again on cross-examination?18 A. Yes.19 Q. And is this a letter that you would write as an20 engineer?21 A. Typically, I would not.22 Q. Why not?23 A. I would use terms like “in general conformance,"24 just because of the fact that I'm -- I'm not there 24 hours a25 day watching every single thing that happens.Trial Transcript, dated March 13, 2017, Vol. 11. A true and correct copy of the aboveexcerpt is attached hereto as Exhibit “28.”43. Implicit in Mr. Parzych’s opinion, is that a similar engineer in the communitywould not write Code Plus Letters containing absolute language that the as-built condition of thehome met or exceeded the requirements of the Florida Building Code and the Miami Dade windload requirements.44. Mr. Parzych further testified that similar engineers in the community do not makeguarantees, even after proper inspection, which inspections never occurred in this Case. KEG’sCode Plus Letters are in fact guarantees because the Code Plus Letters contain absolute languageregarding the as-built conditions of the residence. Relevant portions of Mr. Parzych’s trialtestimony are as follows:(Page 2611)3 Q. And, of course, your inspections that were done with4 you and your people would guarantee that everything is done5 perfectly, would it not?6 A. Engineers don't guarantee.7 Q. Engineers don't guarantee. Okay. I just want to8 get that clear.9 So you wouldn't guarantee -- even though you had10 your people out there -- and you trusted your people, didn'tPage 22 of 3811 you?12 A. Yes.Trial Transcript, dated March 13, 2017, Vol. 11. A true and correct copy of theabove excerpt 1s attached hereto as Exhibit “29.”45. Significantly, evidence to support a negligence claim can be “circ*mstantial.”See, Nielsen v. City of Sarasota, 117 So.2d 731, 734 (Fla. 1960) (‘In a civil case, a fact may beestablished by circ*mstantial evidence as effectively and as conclusively as it may be proved bydirect positive evidence.”). Moreover, when presenting evidence relating to the standard of care,one does not need to use the phrase “standard of care.” Edwards vy. Simon, 961 So.2d 973, (Fla.Ath DCA 2007).46. Pursuant to Florida law, the professional practice of engineering is regulated byChapter 471, Florida Statutes. Among various other regulatory requirements set forth in Chapter471, Florida Statutes, Section 471.003(1)(g), Florida Statutes, provides the following grounds fordisciplinary action against an engineer: “[e]ngaging in fraud or deceit, negligence,incompetence, or misconduct, in the practice of engineering.” Rule 61G15—19.001(6)(b),Florida Administrative Code, defines “misconduct” in the practice of engineering to include“misleading in any professional report” or “omitting relevant and pertinent informationfrom such report when the result of such omission would or reasonably could lead to afallacious conclusion on the part of the client, the employer, or the general public.”47. The Code Plus Letters make express certifications and absolute guarantees to Mr.Armour regarding the as-built conditions of the residence, which are based on allegedinspections and observations that Mr. Karins testified at trial never occurred. The recordevidence shows that KEG unequivocally misled Mr. Armour into believing that the inspectionsand observations took place, and the certifications were accurate. The Code Plus LettersPage 23 of 38expressly and clearly state that Mr. Armour could rely on the certifications. Mr. Armour testifiedthat he did in fact rely on the Code Plus Letters.(Page 1006)7 Q. This letter uses the phrase "as-built condition."8 Do you see that?9 A. Yes.10 Q. Italsosays: "Mr. Armour may rely on the11 information contained herein"?12 A. Yes.13 Q. And did [you] rely on it?14 A. Yes.Trial Transcript, dated March 3, 2017, Vol. 5. (emphasis added). A true andcorrect copy of the above excerpt 1s attached hereto as Exhibit “30.”48. | KEG attempts to argue that its conduct falls within the standard of care pertainingto certifications as set forth in the Florida Administrative Code, Rules 61G15-18.11(4) and61G15-29.001. Unequivocally, Rule 61G15-29.001, Florida Administrative Code, subjectsengineers who make false or unsubstantiated certifications to discipline. Relevant portions of theFlorida Administrative Code, Rule 61G15-29.001 provide, in part, as follows:Engineers who sign, date, and seal certification which (a) relateto matters which are beyond the engineer’s technicalcompetence, or (b) involve matters which are beyond theengineer’s scope of services actually provided, or (c) relate tomatters which were not prepared under engineer’s responsiblesupervision, direction, or control; would be subject todiscipline pursuant to subsection 153161G15-19.001(6), F.A.C.(emphasis added).49. Mr. Parzych unequivocally testified that engineers do not make guarantees. Hethen went through all of the things in the Code Plus Letters that were not true. Mr. Karinslikewise testified that the certifications in the Code Plus Letters were not based upon inspectionsor observations referenced in the Code Plus Letters. The jury had ample evidence to concludethat engineers cannot make guarantees, and by providing express guarantees in the Code PlusPage 24 of 38Letters, KEG committed professional negligence. Additionally, KEG made certifications whichwere beyond the scope of services actually performed by KEG.fii. The Court Abused its Discretion by Excluding Jeff Parzych’s Rebuttal TestimonyRelating to the Standard of Care.50. The Trial Court abused its discretion by excluding Jeff Parzych’s rebuttaltestimony regarding the standard of care. Griefer v. DiPietro, 708 So.2d 666, 672 (1998)(“Although a trial court has broad discretion regarding the admissibility of rebuttal testimony, itabuses that discretion when it limits non-cumulative rebuttal testimony that goes to the heart ofthe principal defense.”); and Torres v. Sullivan, 903 So.2d 1064 (2005). The relevant portion ofthe trial transcript provides, in part, as follows:(Page 7103)1] MR. KOESTER: Before the jury does come in, I do12 have one more question for Jeff Parzych I didn't talk13 about yesterday that we thought about last night. And14 since we're going to go in pretty quick succession, I'll15 just go ahead and bring it up now rather than wait for16 him to be on the stand and the jury in the room.17 THE COURT: Go ahead.18 MR. KOESTER: We did want to have Mr. Parzych rebut19 Bracken'‘s statement that the September 29th, 2008, letter20 met the standard of care. I just want to ask him his21 opinion on that. That's it.22 MR. ABATE: He already testified on that.23 THE COURT: And that 1s something that could have24 been asked while he was on the stand. So if he was your25 standard of care expert, that was the point at which to(Page 7104)1 ask him that question.2 MR. KOESTER: The only issue we have is, I mean,3. obviously they involve Slider's can't meet the standard4 of care, Bracken says the letter met the standard of5 care. Bracken said the letter met the standard of care.6 We just want to rebut Bracken's statement on that point.7 MR. ABATE: Your Honor, he asked him that question8 on direct, and he said, Would you have sent this letter,9 and he said, No, I wouldn't have sent this letter. But10 that was as close as he came to any testimony aboutPage 25 of 3811 standard of care, so this isn't new, this isn't12 surprising.13 THE COURT: Iagree. I agree. So obviously my14 voice 1s worse than I thought. So be it.Trial Transcript, dated April 12, 2017, Vol. 31. (emphasis added). A true and correctcopy of the above transcript is attached to this Response as Exhibit “31.”51. The Trial Court precluded Armour from eliciting this information in Armour’scase-in-chief when, with Mr. Parzych on the stand, Mr. Koester put Trial Exhibit 446 on thescreen and asked what conditions in the field were inconsistent with the Code Plus Letters.Relevant portions of the trial transcript provide, in part, as follows:(Page 2601)10 Q. Again, Exhibit 446, have you reviewed this letter,11 sir?12 A. I believe I have, yes.13 MR. ABATE: Your Honor, we'll object to comments on14 this letter. This has been something [J15 THE COURT: I agree. Let's see what the question16 is.17 BY MR. KOESTER:18 Q. Did you find any field investigations ||) well, what19 conditions, if any, did you find in the field inconsistent20 with this letter.21 MR. ABATE: Again, Your Honor, he's now asking for22 the mindset.23 THE COURT: Approach the bench.24 (Bench conference began.)25 THE COURT: If not crossing the line, it comes(Page 2602)1 pretty close. I mean, what's the distinction?2 MR. KOESTER: I'll just stop here then.3. (Bench conference ended.)Trial Transcript, dated March 13, 2017, Vol. 11. (emphasis added) A true and correctcopy of the above excerpt is attached hereto as Exhibit “32.”Page 26 of 3852. In addressing the standard of care issues with Mr. Kobza, the Court agreed thatthose issues were for the jury to decide. Relevant portions of the trial transcript provide, in part,as follows:(Page 3203)19 MR. KOESTER: On my notes I was going to have20 him go through the standard of care. Is that a21 legal issue we are going to be handling with the22 jury instructions? He was going to be our damage23 expert and say the subs fell below the standard of24 care and breached their contract and those kind of25 things. I had him go through the work that each of(Page 3204)1 them did. I'm assuming that's the matter of law2 for jury instruction.3 THE COURT: Yes.4 MR. KOESTER: So I'll skip that.Trial Transcript, dated March 16, 2017, Vol. 14. (emphasis added). A true and correctcopy of the above excerpt 1s attached hereto as Exhibit “33.”53. The Trial Court should have permitted Mr. Parzych’s rebuttal testimony toconfirm what was meant by the words “standard of care,” and to rebut Mr. Bracken’s testimonythat authoring the Code Plus Letters was within the standard of care.54. However, direct testimony on the obvious issue that providing false andunsubstantiated information to people who are relying on that information falls below thestandard of care is not required. We can certainly assume that if this was a case about a doctorwho was being sued for medical malpractice because he knowingly lied in making a diagnosis,there would not be a need for expert testimony regarding the physician’s obligation to tell thetruth.55. The testimony is unequivocal that the contents of the Code Plus Letters were infact not true; therefore, KEG, in authoring the Code Plus Letters, fell below the standard of care.Page 27 of 38The jury had the ability to determine for itself that the Code Plus Letters were false based on theample testimony and evidence presented. This is not a complicated medical malpractice claim orany other type of complicated claim where an expert would be needed to testify that theprofessional involved had an obligation to be honest.56. The record 1s replete with evidence that David Karins and KEG never inspectedor observed the work that the Code Plus Letters certify are properly built. Clearly simularprofessionals in the community would not expressly certify in writing that construction meets orexceeds the requirements of the Florida Building Code, or the Miami Dade wind loadrequirements, without first inspecting or observing the work being certified.57. Expert testimony was presented at trial that similarly situated engineers in thecommunity do not make guarantees and would not have authored the Code Plus Letterscontaining absolute guarantees, since doing so would fall below the standard of care expected ofan engineer. In the Code Plus Letters, KEG makes absolute guarantees and false certifications,both of which violate the standard of care expected of engineers in the community.IV. The Jury Reasonably Concluded that KEG Violated the Florida Building Code58. In its Motion for Judgment in Accordance with Motions for Directed Verdict,KEG argues that KEG, as a designer, can only be held responsible for design defects.59. Conveniently, KEG’s Motion for Judgment in Accordance with Motions forDirected Verdict, as it relates to building code violations, entirely ignores the Code Plus Lettersand the guarantees contained therein, including that the residence was designed and constructedin accordance with the Miami Dade wind loading requirements and in full compliance withFlorida’s Building Code.Page 28 of 3860. The parties to the agreement to build the residence 

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