IN THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT IN AND FOR XXX COUNTY, XXX

GARY S. HARHAY,

           Plaintiff,

                  vs.                                                     CASE NO. XXX

XXX CONSTRUCTION, INC.,

 a XXX Corporation

           Defendant.

AMENDED COMPLAINT

The Plaintiff, XXX  represented pro-se (hereinafter “Owner”), sues the Defendant, XXX CONSTRUCTION, INC., (hereinafter “Defendant”) and alleges as follows: –

FACTS

1. The owner is a resident of XXX.
2. The owner is and has been at all times material the owner on record of property located at XXX. Said structure and real property are hereinafter referred to as the (“Residence”).

The defendant is a XXX registered corporation with its primary place of business in XXXX.

3. The defendant is a construction firm focused on the construction of single-family homes qualified to do business as a Licensed Certified Building Contractor under XXX law.
4. The venue and jurisdiction of this matter properly lie in XXX County, ZXXX  in that all acts and omissions pertinent to this complaint occurred in XXX County.
5. This is a cause of action for damages that exceeds ($15,000.00) Fifteen Thousand Dollars exclusive of penalties, costs, interest, and attorney’s fees.

GENERAL ALLEGATIONS

6. On or about XXX, the Owner entered into a Construction Agreement (“Contract”) with Defendant. A copy of said Contract for the construction of a new single-family home for the Owner is attached hereto and incorporated by reference as Exhibit 1. 
7. The contract between the Owner and Defendant establishes that the owner and Defendant are privy to the contract. 
8. The Contract required Defendant to complete the construction of the home for Owner pursuant to the terms set forth in Exhibit 1. as well as the selections/specifications attached to the agreement or otherwise incorporated into the agreement.
9. XXX is the President and holds the Certified Building Contractors license for XXX Construction Inc.
10. Defendant planned and constructed the Residence.
11. XXX is (XXXX wife) and is a managing representative and the licensed real estate sales agent for Joe Baker Construction Inc.
12. Allison is (JXXX s daughter) Allison is an employee and the designated designer for Defendant Joe Baker Construction Inc.
13. Allison drew the house plans for the Residence.
14. Allison drew the plot plan for the Residence.
15. On or about XXX, and repeatedly during the course of Defendant constructing the finish grade around the perimeter of the Residence, the Owner complained to Defendant that the finish grade of the yard and sprinkler system was not being done properly or sensibly.
16. On XXX, the construction of the Residence was substantially completed; however, numerous significant items of defective work have been discovered. 
17. The outstanding items of defective work include, but are not limited to, the items described in the Licensed Professional Civil Engineer’s Inspection Report. See Exhibit 2. (report).
18. The Residence experiences significant water drainage problems around the perimeter of the foundation due to the improper negative grade of the yard.
19. The Residence experiences significant water drainage problems in the front yard of the Residence due to improper site design.
20. The Residence experiences significant water drainage problems due to the improper foundation height, of the front foundation of the Residence.
21. The concrete walkway leading to the front door of the Residence is constructed in such a way that the walkway becomes submerged after it rains. See Exhibit 3. (picture)
22. Rainwater ponds against the foundation and persists for days after the rain has ended. See Exhibit 4. (picture)
23. The walkway to the front door wrongfully slopes down towards the front steps of the Residence. See Exhibit 5. (picture)
24. The walkway to the front door along the front of the garage has a backward sideways slope (or sideways pitch) towards the foundation of the Residence. Which is completely opposite of what it should be. The side slope (or pitch) of the walkway should slope away from the foundation in order to direct the rainwater away from the foundation. See Exhibit 6. (picture)
25. Deficiencies exist in the necessary grades and swales needed for proper drainage of stormwater away from the foundation and the entryway steps in the front yard of the Residence. See Exhibit 7. (picture)
26. The front door to the Residence is rendered unusable as a safe entry and exit point into the Residence due to the slip and fall hazard created by the Defendant’s defective work. See Exhibit 8. (picture)
27. The owner brought this complaint to the attention of Defendant during the construction of the Residence as well as after the occupancy of the Residence.
28. The defendant had actual knowledge of the hazardous condition at the close of escrow.  
29. The owner’s requests to resolve the defects were and have been ignored by Defendant.
30. Defendant has made no offer to resolve the defective work.
31. As a result, On XXX, the Owner served a Written Notice of Defects pursuant to Chapter 558 XXX  Statutes. See Exhibit 13.
32. Defendant has failed to provide a formal written response to the Demand Letter and the statutory period mandated by Chapter 558 prior to initiating this claim has run.
33. On XXX, Plaintiff sent Defendant a formal written Request for Defendants Liability Insurance Policy and Builders Risk Insurance Policy, in accordance with Fla Stat. § 627.4137. See Exhibit 14.
34. Defendant refused to furnish Proof of Insurance as required by XXX law which in turn forced the Owner to bring about this lawsuit.

COUNT I – BREACH OF CONTRACT

35. The Owner and the Defendant are bound by the signed contract attached as Exhibit 1.
36. Owner contracted with the Defendant to build a Turn-key Residents.
37. The definition of “Turn-key” regarding a new house is a house that is completely finished and ready for use right away with no defects, safety issues, or modifications needed.
38. Design specifications in the contract to build the Residents, included a sprinkler system, sod landscaping, a concrete parking pad, and a proper concrete sidewalk to the front door of the Residence.
39. Defendant was required to construct the Residence in accordance with the contract.
40. Defendant failed to construct the height of the foundation to the specifications in the contract, as well as general standards of construction processes applicable to residential home builders. The Contract clearly states that the foundation height is to be determined by the slope of the land. See Exhibit 1. (The Contract), on the Description of Materials page, under the heading Foundation.
41. Defendant has failed to provide all of the services required under the terms of the Contract.
42. The failure to provide the work required under the terms of the Contract is a material breach of the Contract.
43. The defendant had a legal duty to the owner to construct the Residence in accordance with acceptable industry standards and customs, in a good workmanlike manner.
44. The Owner has suffered damages as a result of Defendant’s breach of contract. Such damages include property damages, damages for loss of use, diminution in value, costs to correct, costs to complete, and damage to other property. Due to Defendant breaching the contract Owner has suffered Direct and Indirect losses.

WHEREFORE, the Owner demands judgment for damages against Defendant, including court costs, interest, attorneys’ fees if applicable, and such other relief as this Court deems reasonable.

COUNT II – BUILDING CODE VIOLATION

45. Under Florida law, in order to become a Licensed Certified Building Contractor, a contractor is required to exhibit the knowledge and experience that is necessary for the safety and protection of the public. Such knowledge includes knowing Florida Building Code requirements. 
46. Once a contractor becomes licensed, Florida law requires the contractor to complete their work in an appropriate manner.
47. Florida Building Code states it is the builder’s responsibility to establish the proper grades, swales, and drainage away from the home. The proper grade and drainage requirements are clearly stated in the Florida Building Code Book, Residential, 7^th Edition, described in Chapter 4, page 79, Foundations, R401.3 Drainage. Set forth in Exhibit 2, 9, and 10.
48. The United States Environmental Protection Agency requires patio slabs, walks and driveways need a minimum slope of 1/4 inch per foot over a minimum distance of 10 feet as you walk away from the house.
49. National Association of Home Builders R401.3 Drainage. Requires that surface drainage on lots shall be graded to drain surface water away from foundation walls. The grade shall fall a minimum of 6 inches within the first 10 feet, to prevent settling of the foundation and so as to not create a hazard. See Exhibit 16.
50. Landmark Engineering & Land Planning See Licensed Professional Civil Engineer’s Report. Exhibit 2.
51. The top of the foundation has to be a minimum distance of 6 inches above the finished graded soil that comes in contact with the outside of the foundation of the Residence. This is the minimum distance per code. See Exhibit 17.
52. There must be a minimum of 6 inches of free space, between the weep-holes in the brick veneer and the finished grade all around the perimeter of the residence per code.
53. A deficiency exists in the necessary grades and swales needed for proper drainage of rainwater away from the foundation of the Residence. The wrongfully set grade is most grossly apparent in the front yard of the Residence. See Exhibit 18.
54. The defective drainage issues were foreseeable by Defendant.
55. The defendant was well aware their grading as well as the height of the foundation in the front of the Residence is not in accordance with acceptable industry standards and customs of the home building industry.
56. The foundation in the front of the Residence does not properly fit the slope from the foundation of the Residence.
57. The foundation was built 16 inches too low.
58. In cases involving the construction of a new home, it is the responsibility of the Defendant as the Licensed Certified Building Contractor to make right any code violations regardless of what was found or overlooked by the County inspector.
59. Defendant as the licensed building contractor of the Residents must guarantee the quality of the construction.
60. Even if a building code violation is not found during the final inspection, but found when the building is over one year old, Defendant as the licensed building contractor is still responsible.
61. The State of Florida has contract and construction defect laws in place pertaining to new construction built by licensed building contractors. An action founded on defects in the design, planning, or construction, discovered within a four-year and ten-year period, is still the responsibility of the licensed building contractor as set forth in Fla Stat. § 95.11(3)(c).
62. The licensed building contractor’s obligation to comply with building codes and ordinances is based on Florida contractor licensing laws, the contract, and the standard of care for workmanship.
63. At the Owner’s request, a re-inspection of the grade and drainage defects was performed on November 30, 2021, by the Chief Deputy Building 
64. A Licensed Certified Building Contractor is responsible for building a residence that is safe to occupy and is held to a higher standard of care than an ordinary person.
65. As a result of Defendant’s knowing violation of the Florida Building Code, and under section 553.84 the Owner has suffered damages that include property damages, damages for loss of use, diminution of value, and damage to other property.

WHEREFORE, Owner demands judgment for damages against Defendant, including court costs, interest, attorneys’ fees if applicable, and such other relief as this Court deems reasonable.

COUNT IV – FRAUD

66. Defendant advertises “Quality Homes Built for you.” This is printed on their business card that was handed to the Owner during the signing of the building contract. Holly Baker said, Quote, “XXX Construction will fix anything that you do not like about the house that we will build for you. Holly Baker went on to say “I guarantee you will be happy with the house upon its completion.” The owner relied on that statement by the sales agent for Defendant named Holly Baker.
67. Defendant has now communicated to the Owner and to the County’s Deputy Building Inspector XXX that Defendant will not fix any of the defective work on the Residence. See pages 2 and 3 of Exhibit 20. (e-mail).
68. The Defendant’s intentional misrepresentation and concealment of important facts upon which the Owner relied on to employ them as the Builders, constitutes fraud under XXX law.
69. The owner suffered pecuniary damages and non-pecuniary damages as a result of that reliance.
70. Defendant created defects and actively concealed issues that affected the value of the property, in doing so violated Florida law.
71. The defects will cause or have caused physical injury to tangible property.

WHEREFORE, Owner demands judgment for damages against Defendant, including court costs, interest, attorneys’ fees if applicable, and such other relief as this Court deems reasonable.

COUNT V – VICARIOUS LIABILITY

72. The defendant as the Certified Building Contractor, is fully and solely responsible for the negligence of his subcontractors hired to perform the work on the Residence.
73. The defendant failed to supervise and direct the work of the subcontractors he hired to perform the work.
74. The defendant is solely responsible for the control over construction means, methods, techniques, sequences, and procedures under the contract.
75. The defendant is responsible for the acts and omissions of his employees, subcontractors, and their agents and employees.

DEMAND FOR JURY TRIAL

Plaintiff hereby demands a trial by jury.

I certify to the best of my knowledge, information, and belief that this complaint is supported by existing law and that the factual contentions have evidentiary support. I agree to provide the XXX Office with any changes to my address where the case

related papers may be served.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was delivered on _________, XXX, electronically filed with the Clerk of the Court by using the Florida e- Portal filing system.

Dated this _____ day of _________, XXX

  Plaintiff

XXX

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