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IN THE COUNTY COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIVIL ACTION
FIRST CHARLOTTE A.C.&
REFRIGERATION, INC.,
a Florida corporation,
Plaintiff,
V. Case No.: 22000945CC c
os
TERRY DUNN-FISCHER, ©
-_
Defendant. 2 ee
ace
7
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DEFENDANT’S MOTION TO AMEND/MOTION FOR RECONSIDER
Comes Now, the Defendant Terry Dunn-Fischer in pro se fashion respectfully
files this Motion to Amend her Motion for Reconsideration, pursuant to Florida
Rule of Civil Procedure 12.190 and states:
1 Defendant files this Motion, to attach this court’s Default Judgement
“handwritten” minutes/Ruling in fear that this court will deny her Motion to
Reconsider, which should be (DIN 38), for failing to attach the same.
2 Defendant had referred to the handwritten “court minutes” created on August
17, 2023, in her Motion to Reconsider, seen as (DIN 37) on page 2, but now
believes, it may be necessary to attach a “hard copy” of the same, to her original
Motion, seen as Exhibit C.
3 To date the Defendant has not received a formal “Order” or a copy in
response to her Motion to Reconsider from the Plaintiff, which may be due to
Florida’s current “State of Emergency Status”.
1
WHEREFORE, Plaintiff respectfully requests that this court as relief, to
allow her to attach this addendum to her Motion for Reconsideration
related to this courts Default Judgement dated August 17, 2023, in this
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matter and such, fu
hes) elief as the court deems just and proper.
coe
Terry D ann-Fischer, Pro Se~
820 Conreid Dr. NE
Port Charlotte, Florida 33952
CERTIFICATE OF SERVICE
I, HEREBY CERTIFY that a true and correct copy of the forthgoing
has been hand delivered to the Plaintiff’s attorney, John G. Beggan, ESQ,
at 99 Nesbit Str eet Punta Gorda, Florida 33950 as identified in his
yer
Motion, on 1S. -H day of August 2023.
i ~~
(——
érry Dunn-Fischer, Pro Se
820 Conreid Dr. NE
Port Charlotte, Florida 33952
941-977-9010
dunnfischer@aol.com
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
COUNTY COURT MINUTES
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Exhibit C!
IN THE COUNTY COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIVIL ACTION
FILED
FIRST CHARLOTTE A.C.& CLERK OF THE CIRCUIT COURT
REFRIGERATION, INC.,
a Florida corporation, 0 2A \2%
Plaintiff,
Vv. Case No.: 22000945CC
TERRY DUNN-FISCHER,
Defendant.
DEFENDANT’S MOTION FOR RECONSIDER/REQUEST TO AMMEND
OPPOSITION TO MOTION FOR SUMMARY JUDGEMENT
Comes Now, the Defendant Terry Dunn-Fischer in pro se fashion who files this
motion for reconsideration Florida Rule of Civil Procedure 1.160. and Fla. R. Civ.
P 1.190, to amend her Opposition to Plaintiff's Motion for Summary Judgement
(DIN 36) and request to set aside the Default Judgement this court granted on
August 17, 2023, under Fla. R. Civ. P. 1.500, granting the Plaintiffs Motion for
Summary Judgement in total (DIN 34). Her Respectful requests are based on the
Following.
1 The Defendant apologizes for missing the scheduled hearing on August 17,
2023, it was not intentional or a deliberate act of disrespect, it was a mis-calendar
mistake, she wrote it down for Friday, August 18, 2023. The Defendant struggles
with her Dyslexia but has been timely in all other actions in this case, see Fla. R.
Civ.P. 1.540 (a) (b) and 1.530, case law indicates that excusable neglect causing a
party to failto appear for a final hearing has been grounds for granting relief.
Excusable neglect is found “where inaction results from clerical or secretarial
error, reasonable misunderstanding, a system gone awry or any other of the foibles
to which human nature is heir.
2 The Defendant Terry Dunn-Fischer is a pro se litigate, who independently
produced and filed a timely “Opposition to the Plaintiff's Motion for Summary
Judgement” on June 30, 2023, which did include a signed Declaration Statement,
seen as pages 8 and 9, pursuant to; Fla. R. Civ.P. 1.510, Summary Judgement,
Procedures, says:
Fla. R. Civ.P. 1.510, Summary Judgement, Procedures. C. (4) States that an Affidavits or
Declarations. An affidavit or declaration used to support or oppose a motion must be made on
personal knowledge, set out facts that would be admissible in evidence, and show that the affiant
or declarant is competent to testify on the matters stated.
3. The Defendant believes this court granted the Movants motion in total, by
default, because she was able to access the case docket over the internet in the
early morning of August 18, 2023, once she realized her calendar date was wrong
and read the handwritten court minutes seen as (DIN 37).
4 Since she is pro se and has yet to receive a clear court “finding” based Order
stating why her Filed Opposition to the Plaintiff’s Motion was not seen as filed,
except that there was no affidavit. She believes that this court granted the Movants
Summary Judgement, in total by default, because the Defendant did not include a
notarized Affidavit stating the same, which is a misstep based on a
misinterpretation of the above Rule. The Defendant has now obtained said
notarized affidavits and attached them to this Motion for Reconsideration and is
respectfully requesting this court see them as an addendum to her Opposition for
Summary Judgement, as a curative action and set it aside in accordance with rule
2
1.540(b)., Exhibit’s:‘G and H, are attached to this motion and added to the
Defendant’s original Opposition to Summary Judgement, also identified as
Exhibits G and H.
5 She respectfully requests this Under Fla. R. Civ.P 1.540.and 1.530, RELIEF FROM
JUDGMENT, DECREES, OR ORDERS
(a) Clerical Mistakes. Clerical mistakes in judgments, decrees, or other parts of the record
and errors therein arising from oversight or omission may be corrected by the court at any time
on its own initiative or on the motion of any party and after such notice, if any, as the court
orders
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On
motion and upon such terms as are just, the court may relieve a party or a party’s legal
represéntative from a final judgment, decree, order, or proceeding for the following reasons: (1)
mistake, inadvertence, surprise, or excusable neglect.
6. The Defendant makes claim that the Plaintiff's /Movants affidavit seen as
Exhibit B, in fraudulent and was made in bad faith, see Rule Fla. R. Civ.P 1.540
(g) Affidavits Made in Bad Faith. If it appears to the satisfaction of the court at
any time that any of the affidavits presented pursuant to this rule are presented in
bad faith. An offending party or attorney may also be held in contempt or subjected
to other appropriate sanctions.
7. The Defendant also raises her protection of Due process under her Fourteenth
Amendment Rights: which states, Procedural due process, is based on principles of
“fundamental fairness,” addresses which legal procedures are required to be
followed in state proceedings. Relevant issues, such as the opportunity for hearing,
confrontation and cross-examination, discovery, basis of decision, and availability
of counsel. Substantive due process, although also based on principles of
“fundamental fairness,” is used to evaluate whether a law can be applied by states
at all, regardless of the procedure followed. Substantive due process has generally
dealt with specific subject areas, such as liberty of contract or privacy.
8 Her Requests are also necessary under Federal Rule 56. For Summary
Judgment: that states, the court should state on the record the reasons for granting
or denying the motion. The "federal summary judgment standard" refers to the
principles announced in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), Anderson
v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Electric Industrial Co.
v. Zenith Radio Corp., 475 U.S. 574 (1986), and more generally to case law
interpreting Federal Rule of Civil Procedure 56. On August 25, 2022, on its own
motion, the Florida Supreme Court amended Florida Rule of Civil Procedure 1.530
now to require a motion for rehearing before challenging on appeal “the
sufficiency of a trial court’s findings in the final judgment.” Whether by statute or
by rule, certain orders issued by a circuit court must contain specific factual
findings. A motion for rehearing is required to preserve the issue for appellate
review. In the issuing opinion, the court wrote “We have determined that
amendments to these rules are necessary to clarify that filing a motion for
rehearing is required to preserve an objection to insufficient trial court findings in.a
final judgment order.” In re: Amends. to Fla. Rule of Civil Procedure 1.530 &
Fla, Fam. Law Rule of Procedure 12.530, No. SC22-756, slip op. at 1 (Fla. Aug.
25, 2022). In Eaton, the First District flatly held that the failure to move for
rehearing before the circuit court waives the issue for appellate review.
DISPUTE HISTORY AND FLORIDA BUILDING CODE
9 This case arose from a dispute between the parties, a homeowner and a
Licensed HVAC Contractor who failed to. producé a clear “contract” but filed a
signed Notice of Commencement “NOC” in Charlotte County, Fl. The Licensed
Contractor produced an estimate for a job hé designed, which produced significant
defects and faulty workmanship. The Contractor “First Charlotte” also breached
his duty and obligation to which falls within the to supervise and inspect the work
performed, See Gatwood v. McGee, 475 So. 2d 720 (Fla. Ist DCA 1985). A
construction defect occurs whenever finished or partially completed construction
fails to perform as required by applicable contract documents or accepted
standards. A construction defect exists where the structure or any of its systems do
not work as intended or should and manifestations of the defect must be corrected.
The manifestation is the apparent condition of the structure, a component, or the
materials that is caused by the construction defect, and which provides evidence of
a deeper problem. If the contractor took the job and agreed to perform a specific
job in exchange for money. If they don’t perform that job to the expectation or
standards of the project owner, those parties are likely to request the contractor fix
or finish the work, and they’!| withhold payment until they do so, which is what
lead to this dispute. The Contractor “First Charlotte” Pulled the permit for this job,
thus they are legally liable to comply with. The statute for Construction Defect
Claims in Florida, in Chapter 558, applies to claims stemming from an assumed
construction defect. Section 558.002(5), F.S., defines a “construction defect’
follows:“[A] deficiency in, or a deficiency arising out of, the design, specifications,
surveying, planning, supervision, observation of construction, or construction,
repair, alteration, or remodeling of real property resulting from: (a) Defective
material, products, or components used in the construction or remodeling; (b) A
violation of the applicable codes in effect at the time of construction or remodeling
which gives rise to a cause of action pursuant to s. 553.84; (c) A failure of the
design of real property to meet the applicable professional standards of care at the
time of governmental approval; or (d). A failure to construct or remodel real
property in accordance with accepted trade standards for good and workmanlike
construction at the time of construction.” Pursuant to Florida Building Codes:
“The failure of a contractor to supervise properly can result in the revocation or suspension of a
license by the Construction Industry Licensing Board of the Department of Business and
Professional Regulation, which regulates licensed contractors. See Alles v. Department of
Professional Regulation, 423 So. 2d 624 (Fla. 5th DCA 1982); Hunt v. Department of
Professional Regulation, 444 So. 2d 997 (Fla. Ist DCA 1983).”
MEMORANDUM OF LAW
A. PRO SE STANDARD OF REVIEW
Generally, “The courts provide pro se parties wide latitude when construing
their pleadings and papers. When interpreting pro se papers, the Court should use
common sense to determine what relief the party desires.” S.E.C. v. Elliott, 953
F.2d 1560, 1582 (11th Cir. 1992). See also, United States v. Miller, 197 F.3d 644,
648 (3rd Cir. 1999) (Court has special obligation to construe pro se litigants
pleadings liberally); Poling v. K. Hovnanian Enterprises, 99 F.Supp.2d 502, 506-
07 (D.N.J. 2000).
Because the Plaintiff is pro se, the Court has a higher standard when faced
with a motion to dismiss, White v. Bloom, 621 F.2d 276 makes this point clear and
‘states: A court faced with a miotion to disiiss a pro se complaint must read the
complaint's allegations expansively, Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.
Ct. 594, 596, 30 L. Ed. 2d 652 (1972), and take them as true for purposes of
deciding whether they state a claim. Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct.
1079, 1081, 31 L. Ed. 2d 263 (1972).
WHEREFORE, Plaintiff respectfully requests as Relief, that this court
grant her Motion for Reconsideration to put aside this courts Default
Judgement dated August 17, 2023, recognize her Filed Opposition for
Summary Judgment with the new attached Affidavits and reschedule the
missed hearing, in this matter and such further relief as the court deems
just and proper,
—
Terry Dunn-F, er, Pro Se
820 Conreid Dr. NE
Port Charlotte, Florida 33952
CERTIFICATE OF SERVICE
I, HEREBY CERTIFY that a true and correct copy of the forthgoing
has been hand delivered, to the Plaintiff’s attorney, John G. Beggan,
ESQ, at 99 Nesbit Street, Punta Gorda, Florida 33950 as identified in his
Motion, ont py August 2023.
GZ rry
OT
<= ——— Le
e Dann-Fischer, Pro Se
820 Conreid Dr. NE
Port Charlotte, Florida 33952
941-977-9010
dunnfischer@aol.com
IN. THE COUNTY COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIVIL DIVISION
FIRST CHARLOTTE A.C.&
REFRIGERATION, INC.,
a Florida corporation,
Plaintiff,
Vv. Case No.: 22000945CC
TERRY DUNN-FISCHER,
Defendant.
AFEIDAVIT OF ANNALYSE DUNN-FISCHER
STATE OF FLORIDA }
COUNTY OF CHARLOTTE }
BEFORE ME, the undersigned authority personally appeared ANNALYSE DUNN-
FISCHER, who, being sworn, deposes and says:
1 Iam a Florida Resident, over 18 years of age, and competent to testify.
2. Ihave personal knowledge of all the facts stated herein.
3. Iam the daughter and reside with the Defendant in this action, between FIRST
CHARLOTTE A.C. & REFRIGERATION, INC., (‘First Charlotte”) and TERRY DUNN-
FISCHER.
4. I am a witness to all “on site” interactions between the Plaintiff, (“First Charlotte”)/ JOE
CELLAMARE and his “CREW/INSTALLERS/REPRESENTATIVES” and TERRY DUNN-
FISCHER, during the estimate process/ the entire installation process on August 2, 2022, and on
the day after August 3, 2022.
5 At the end of the installation process, the crew stated that the job was done and asked “US”
to inspect the placement and efficiency of the job. Joe Cellamare was not present during the
installation process and did not show up at the end of the job.
@ \ evtubt Gr
6 Terry Dunn-Fischer identified multiple problems associated with the placement of the ducts,
thermostat placement, and the total lack of air flow to the three drops in the 2 bedrooms and the
bathroom.
7 Terry Dunn-Fischer raised all the above issues and concems with the crew and was told that
“they had to call Joe” and then stated “that Joe Said he would come by in the am to fix the
problems, also Joe Cellamare refused to talk to Terry Dunn-Fischer that night and the crew left
the job.
8 I personally identified the lack of air flow, with my mother Terry Dunn-Fischer, to the 3
drops in the bedrooms and bathroom. At this time, one of his crew climbed on the ladderin the
attic space and moved “something around”, but even after that there was minimal air flow to this
side of the house. My mom stated, “please make sure Joe knows about these problems.”
9. When the crew left our house, they stated that “JOE” would come by in the morning to
address and fix all of the problems, issues and address her concerns.
10. ° Joe Cellamare, did show up at our residence in the am of August 3, 2022, by he came by
himself and refused to inspect the job! He did NOT come any further than the front door after
my mother asked him to look at all the issues and then stated, “That the air flow was fine and
that he would not “fix” anything until he was paid in full”.
11. My mother Terry Dunn-Fischer, stated “‘she would be glad to pay him in full and even
extra if he would fix all the problems, to include adequate air flow to the back rooms and figure
out how to get air flow to the living room that did not have a duct/drop.
12. Joe Cellamare then stated because we were here, at the house during the installation, that
we should have supervised his crews’ work.
13. My mother Terry Dunn-Fischer” tried to work with “First Charlotte” to fix all the
problems associated with the NEW HVAC system, but her requests were denied in total by “First
Charlotte”.
In December of 2022, 4 months after she openéd the kitchen walls, she contacted other
14.
Licensed HVAC Contractors to assess and fix all the problems related to “First Charlottes”
installation job.
15. She choose to use “EZE Air Solutions” because their technician climbed up into the attic
and made a list of the problems that he identified, that needed to be changed, fixed, and moved to
allow adequate and balanced air flow to all areas of our house.
16. After and only after, “EZE AIR” fixed all the problems that were found, the air flow was
then adequate and balanced to the best of its ability, based on the 6 drops, open kitchen walls and
a drop placed in the living room area.
@ "Ctl C a
17. At NO time did “FIRST CHARLOTTE/ JOE CELLAMARE” supervise, inspect,
fix or
agree to cure the problems associated with his Estimate.
18. As of the date of this Affidavit, First Charlotte has refused to inspect or fix any of the
problems that were produced by their design, installation, and the Plaintiff's bad faith actions.
FURTHER AFFIANT SAYETH NAUGHT.
<5 ——e
Annalyse Dua cher
STATE OF FLORIDA }
COUNTY OF CHARLOTTE )
Aca
Swom to me and subscribed befor me by means of [ [physical presence or [ ] online
notarization, this_2/ dayof _Anuw , 2023 by Annalyse Dunn-Fischer [ ] who is
personally known to me or [ ] has produced_Fl_
ow - (cease as identified.
J
Sr eANPeELL No Public
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Gm Notary Publicton- 9.6G
State of
952944
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fended Tanett harphell
Printed Name of Notary
(Notary Seal]
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IN THE COUNTY COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIVIL DIVISION
FIRST CHARLOTTE A.C.&
REFRIGERATION, INC.,
a Florida corporation,
Plaintiff,
Vv. Case No.: 22000945C
TERRY L. DUNN-FISCHER,
Defendant.
A FFIDAVIT OF TERRY DUNN-FISCHER
STATE OF FLORIDA }
COUNTY OF CHARLOTTE }
BEFORE ME, the undersigned authority personally appeared TERRY L. DUNN-FISCHER,
who, being sworn, deposes and says:
1 Iam a Florida Resident, over 18 years of age, and competent to testify.
2. Ihave personal knowledge of all the facts stated herein.
3 Iam the Defendant/Counter Plaintiff, in this Civil action, between myself and FIRST
CHARLOTTE A.C. & REFRIGERATION, INC.; (“First Charlotte”).
4. Ihave produced and filed the appropriate documents, titled “Defendant’s Opposition to
Plaintiffs Motion for Summary Judgment” in Pro Se fashion, which included a sigried
Declaration Statement on June 30, 2023, consistent with The Florida Civil Procedural
Regulations.
5 [am a witness to all interactions between the Plaintiff, (“First Charlotte”)/ JOE
CELLAMARE and his “CREW/INSTALLERS/REPRESENTATIVES” and myself TERRY
"Bytlba 4”
DUNN-FISCHER, during the estimate process/ the entire installation process on August 2, 2022,
and on the day after August 3, 2022.
6 I, Terry Dunn-Fischer was on site during the installation process, when the Plaintiff's crew
stated that the job was done and asked “US” to inspect the placement and efficiency of the job.
Joe Cellamare was not present during the installation process, he never checked in with his crew
and refused to discuss the problems related to the Job, when contacted by his crew, before they
left the residence on August 2, 2022.
7 I, Terry Dunn-Fischer identified multiple problems associated with the placement of the
ducts, the thermostat placement, and the total lack of air flow to the three drops in the 2
bedrooms and the bathroom. When I addressed the lack of a drop in the living room area, one of
r
Joe’s crew, stated “I knew this was not going to work
8 I, Terry Dunn-Fischer raised all the above issues and concerns with the crew and was told
that ‘they had to call Joe” and then they stated, “that Joe said, “he would come by in the am to
fix the problems”, also Joe Cellamare refused to talk to Terry Dunn-Fischer that night and the
crew left the job.
10. I, personally identified the lack of air flow, with my daughter Annalyse Dunn-Fischer,
onsite witness, to the 3 drops in the bedrooms and bathroom. At this time, one of his crew
climbed on the ladder in the attic space and moved “something around”, but even after that there
was minimal air flow to this side of the house. I then stated, “please make sure Joe knows about
all of these problems.”
11. Before the crew left my Residence, they stated that “JOE” would come by in the morning
to address and fix all the problems and issues to address my concerns, to include not placing a
drop in the living room.
12. On August 3, 2022, Joe Cellamare (president and owner of First Chalotte) did show up at
our residence in the am, but he came by himself and refused to inspect the job!
13. He did NOT inspect the Job; he did not come any further than the front door of my house.
He stated, “That the air flow was fine and that he would not “fix” anything until he was paid in
full”.
14. I, Terry Dunn-Fischer, stated “I would be glad to pay him in full and even extra if he
would fix all the problems, to include adequate air flow to the back rooms and figure out how to
get air flow into the living room that did not have a duct/drop.
15. Joe Cellamare also stated, “that because my daughter and I were here all day, we could
have and should have supervised the job.”
16. I, Terry Dunn-Fischer” made every attempt to resolve all the problems to obtain an
adequately functioning HVAC system, as was implied per our Estimated agreement, for
‘axlubt
“First Charlotte” to fix all the problems associated with the NEW HVAC system. I even
requested the same in writing via email, but my requests were denied in total by Joe the president
and licensed person for “First Charlotte”. I was not aware of the origin of all the problems with
the system, until I reached out to other contractors to identify that his design plan and installation
was substandard.
17. In December of 2022, 4 months after I took necessary modification steps to open my
kitchen walls, I contacted three other Licensed HVAC Contractors to evaluate why my home, did
not have adequate and balanced air flow, The problems needed to be fixed, since due to the lack
of balanced air flow, I still had window units in my bedrooms.
18. I, choose to use “EZE Air Solutions” because their technician “Chuck” climbed up into the
attic and made a list of all the problems that he identified, that needed to be changed, fixed, and
moved to allow adequate and balanced air flow to all areas of our house, which were placed in
their Estimate and priced appropriately.
19. After, “EZE AIR” fixed all the problems that were found, as seen in their estimate, and
provided at a fair pri¢e, the air flow was then adequate and balanced to the best of its ability,
based on the 6 drops, open kitchen walls and a drop removed from the pantry, and another placed
in the living room area.
20. At NO time did “FIRST CHARLOTTE/ JOE CELLAMARE” supervise, inspect, fix or
agree to cure the problems identified at the end of “Installation Day.”
21. Joe Cellamare stated, “You are nothing, but a SCAMMER and I am not doing any more
work until I am paid in Full”, I believe he was trying to Bully and harassed me, into paying for
an inadequate HVAC System.
22. I, Terry Dunn-Fischer, contacted the Charlotte County Code Investigators office and spoke
with the investigator, who advised me to ‘Not pay him a penny until you are happy with the Job”
and that “I should give him notice, prior to filing a complaint with the office of regulations in
Tallahassee, Florida against his license” to request an investigation for the suspected design
defects he created.
23. As of the date of this Affidavit, “First Charlotte” has refused o inspect or fix any of the
problems that were produced and created by their design and installation flaws.
24. believe that Plaintiff Joe Cellamare intentionally acted in bad faith, lied on his affidavit,
and refused to respect my rights under the law, because I am a woman.
25. I Terry L. Dunn-Fischer, have NO history of being a “scammer”, I was debt free in August
2022, with a credit score in the 800’s, with sufficient funds to honor my commitment to the
Estimate for a New Adequately Functioning central HVAC system, that “First Charlotte”
proposed and failed to install, on August 2, 2022.
* edule
FURTHER AFFIANT SAYETH
fF
Terry L. Dunn-Fischey”
(ze
STATE OF FLORIDA }
COUNTY OF CHARLOTTE }
Aas
Sworn to me and subscribed before me by means of [Tphyhysical presence or [ ] online
notarization, this_2__ day of, 2023 by Terry Dunn-Fischer C j who iis personally
secon
known to me or [ ] has produced as identified
gine, JANET CAMPBELL
Notary Public - State of Florida Not Public
y Commission # GG 952944
hy Comm, Expires Apr 15, 2024
Bonded through &National Notary Assn.
ok
— Jane Ltn
Me I|
Pri inted Name of Notary
(Notary Seal]
IN THE COUNTY COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIVIL ACTION
FIRST CHARLOTTE A.C.&
REFRIGERATION, INC., to,
%
&My
a Florida corporation,
Sy
&g
Plaintiff, Case No. 22000945CC So
Vv
Hearing Date: Aug. 17,.2023
TERRY DUNN-FISCHER, Time: 08:30 am EST
Defendant. Judge: Honorabie Peter A. Bell
Virtual Conference Meeting ID: 510 984 5491
Call-in: 786-635-1003
Link: https://zoom.us/j/5109845491 Via Zoom
)EFENDANT’S OPPOSITION TO PLAIN’ ” MOTION
FOR SUMMARY J EMENT
Defendant hereby submits its Memorandum of Points and Authorities in
Opposition to Plaintiff's Motion for Summary Judgment, received via US Mail on
June 24, 2023, for the reasons set forth below
INTRODUCTION
1 This case arouses from a genuine dispute of a unfished Job related to ani
“Estimate” between the Plaintiff, FIRST CHARLOTTE A.C.&
REFRIGERATION, INC (‘First Charlotte”) the Licensed Contractor, who
provided/produced a defective HVAC system, goods and services, under the Home
Improvement Consumer Protection Act and the Defendant TERRY DUNN-
FISCHER (“Homeowner”) who requested him to fix/cure the faulty design and
1
ductwork installed improperly which created a defective HVAC System,
immediately, See Exhibit A.
“The American Society of Civil Engineers (ASCE) Technical Council on Forensic
Engineering has defined “failure” “an unacceptable difference between expected and
observed performance. The factors that may be considered to determine whether a condition is a
“defect” that would result, such as building codes, industry standards, written contracts and the
cause of the condition, whether it is a result of the construction process; defective design, poor
workmanship, faulty materials and whether the condition needs to be repaired. Improper
Installation can produce; Indoor temperatures falling far from the mark set by the thermostat,
poor airflow, and hot and cold spots throughout the house. Flexible ductwork, when installed
improperly, can create extremely high resistance to the flow of air, known as friction loss”.
2. The Plaintiff/First Charlotte (a Florida Licensed HVAC Contractor) only
produced an Estimate/Proposal based on his design for a complete and New
adequately functioning HVAC system to be placed in the Defendant’s primary
residence (a older home) on July 5, 2022. There is no document that is titled
“Contract” in this case and the Defendant was never provided a drawling of the
design to review with the Estimate/Proposal or notice of commencement, because
a drawling or design draft was never produced, until the Job failed the county
inspection, on August 5t, 2022.
3 On July 13, 2022, the Defendant signed the requested “Notice of
Commencement Document” and was advised that this document was.necessary to
obtain the work permit. This signed Document clearly states under the “Warning
Section” that said job/agreement is deemed as a “Home improvement”, subject to
the guidelines of the Florida Home Improvement Consumer Protection Act.
This Act is intended to provide protection to consumers from deceptive or unfair
practices, and in this context, allows a homeowner to recover treble (three times)
damages, when an improper design and faulty workmanship, results in a faulty
system/product. Then First Charlotte applied for a permit, under the work to be
done as a replacement.
4 The Defendant/homeowner has never agreed to pay the Plaintiff any amount
of money for the installation of an inadequately functioning HVAC System.
5 The Defendant raised the multiple problems associated with the “job” to the
installers at the end of the Job, on August 2, 2022, and again with the
owner/contractor, the next morning, on August 3, 2022 when he came to her
residence to collect a full payment check, but refused to assess and evaluate the
problems identified by the homeowner with his services. She then raised the same
multiple issues in an email to First Charlotte, giving them every opportunity to
cure the problems, See Exhibit A.
6 Because the Defendant wanted the problems cures, she contacted Charlotte
County Building Code Inspector, Tom Atkinson on August 3, 2022 @ 941-268-
9785 for advice on how to process to resolve the construction failure/problems.
Mr. Atkinson stated that “The Contractor has a responsibility to fix the problems,
and that I should not pay him anything until the Job is completed.” He also
advised the Defendant to file a complaint with the Fl. Licensure Board after giving
the Plaintiff written Notice of her intent under the Florida Construction Defect
Statute CH. 558 as a pre-suit Notice, See ExhibitB.
7
Plaintiff filed a Lien on Defendant’s property on August 4, 2022, even before
the first failed Inspection, which was done on August 5”. Then Defendant filed
Notice of Contest of Lien on August 9, 2022, based on the “failed” defective
design of the product/services.
RESPONSES/OBJECTIONS TO PLAINTIFF’S SUPPORTING FACTS
8. Agree to #7, that Defendant meet with Joe Cellamare at her residence in June
2022, to obtain an Estimate/proposal for services to install a brand-new HVAC
system (central air) in her home, which had never had central air. The importance
and main purpose of HVAC construction is the Heating, Ventilation and Air-
Conditioning (HVAC) system are to help maintain good indoor air quality (IAQ)
through adequate ventilation with filtration and provide thermal comfort.
9 Agree to # 8.
10. Agree to #9.
11. Disagree, # 10, and further states, Defendant voiced her plans to place a
partial wall from the backside of the panty to the front wall at the second window
to enclose that area as an extra bedroom, but at NO time did she say, that she was
going to tear down the existing load bearing wall from the kitchen to the living
room: This statement in the Plaintiff’s Affidavit, is a false coached statement, since
that wall is a load bearing wall and impossible to remove. The plaintiff, Mr.
Cellamare, as a licensed contractor, should have known this if he had properly
inspected the framing in the attic. Also, Mr. Cellamare, NEVER informed the
Defendant that he did not plan to place a drop (air Duct) in her living room (larges
room in the house), if he had, the poor design would have been rejected and the
need for the same would have been addressed at the initial estimate meeting. This
is a deceptive statement.
12. Disagree, # 11 The Estimate/proposal did not have attachments, and neither
of them were ever signed by the Defendant, it was just an estimate, most likely
because the Defendant’s house is old and when home improvements are done on
older houses, there may need to be changes made to the original plans, if issues
arise, during the job. Defendant is aware that old houses can be a pandoras box
situation. The Plaintiff “First Charlotte” never produced a clear Contract, to be
signed for this Job.
13. Agree in part and Dispute in part to # 12, and further states, the Job was not
completed on August 2, 2022, because it did not produce adequate air in 3 out of
the 6 drops, and the other 3 drops placed in one area created extreme air flow, the
install lacked adequately balanced functioning HVAC system in her house, the
install was inadequate to meet-the needs of the residence and seen as incomplete,
she did not agree, as no one would to pay for a faulty system, this clearly was not
a benefit to the Defendant, who is the consumer.
14. Agree in part to #13, but raises the proof and evidence, that the estimate
included the size of the unit, the ariount of drops and the returns, what it did not
clarify/state or address was that his intent in his design to forfeited a drop in the
4
Livingroom and placed 3 drops in one area was because he never intending to raise
the Plenum up into the attic to allow adequate air flow to the other 3 drops, he
planned to place the thermostat in the same area, less than 2 foot away from 3
drops, and that the 2ton unit size he chose did not have enough “air force” to add
another drop in the Livingroom, which would have balanced the air and made it
able to reach the bedrooms and bathroom. He also recklessly chose to not
supervise the project and allowed his installers to keep more than 5 feet of
duct/flex uncoiled in the Defendant’s attic, making the air unable to reach the
bedrooms and bathroom. Flexible ductwork, when installed improperly, can create
extremely high resistance to the flow of air, known as friction loss, See
Attachments, =C
15. Disagree to # 14, the Estimate was to obtain an adequately functioning
HVAC system that came with a 1 yr. labo warranty, which was to cover all
problems/ deficit’s found or identified by the homeowner in an immediate and
latened fashion. The Defendant never agreed to pay for a faulty system/product and
gave the Plaintiff every opportunity to inspect the job and cure the problems, he
refused to stand by his work. His actions were deceptive, unfair and deliberate.
16. Agree to # 15 in part and further states that at the time the Defendant wrote
that email she was unaware of all the other defects the Plaintiff's design plan and
faulty installation produced. She was made aware of thesé defects, when she
obtained an Estimate to cure all the problems, the Plaintiff created to include, but
not limited to; changing out the third drop, which the Plaintiff designed to be
placed from the Plenum right above the Thermostat, making the Thermostat miss
read the Temperature of her home, especially in the areas where there was NO air
flow, see Exhibit C.
17. Disagree to # 16, there is no signed document that is titled “Contract” in this
case and the Defendant did not sign any attachments to the Estimate/Proposal, the
Defendant has failed to include a signed document to support his so-called Factual
Position.
18. Disagree to # 17, but further clarifies that the 2-ton sized unit he used in his
design plan is too small to allow another “living roo! drop. It can only support 6
drops, thus the placement of the drops was imperative to produce an efficient
HVAC system, so Homeowner had to modify her kitchen to allow air flow into the
living room, at a cost of $ 2,000 for supplies and labor, on October 6", 2022, more
than 60 days after she gave notice, to the Contractor, See Exhibits D.
19. Agree to # 18,
20. Agree to # 19 in part but further states, the Plaintiff only allotted one day to
complete the job and the workers started at 08:30 and stopped working, when it
was dark. But they did text Joe to let him know that that Deféndant was not in
agreement that the job was done, that the air quality was not acceptable, and she
viewed the agreement as being incomplete, due to the multiple problems she
identified at the end of the day on August 2, 2022.
21. Agree to # 20 in part but refers to her answer in #20. The Plaintiff is the one
who assigned a 12hr job in an Shr workday, not the Defendant.
22. Disagree to #21, the Plaintiff refused to produce a proficient and efficient
HVAC system, to include adequate air flow consistent with a central HVAC system
installation.
23. Disagree to #22, and further states, The Plaintiff refused to inspect his “final
Job” to inspect the “system” he installed when he arrived at the Defendant’s door
and in fact, he initially refused to even come in the house to assess/evaluate or
identify her concerns. When he did come in, He stood at the doorway (His
statement of inspecting the property is False) all he did was demanded that the
Defendant pay him in full. His first statement was that “He didn’t need to supervise
or inspect the work/installation, because the defendant was home all day. He did
identify, while standing at the door, that his workers threw away a shelving unit
because they destroyed it. The Plaintiff’s affidavit is coached and filled with false
statements.
24. Agree to #23 in part, at the time the Defendant was asking for an additional
drop be placed in the living room, she was not aware that this action was
impossible due to the size of the unit installed per the Plaintiff's design plan. The
2-ton unit could NOT adequately supply 7 drops. This truth only came out when
the homeowner/Defendant obtained 3 other estimates to cure the problems
associated with the system the Plaintiff installed: The Defendant’s daughter (who is
over the age of 18 and present during every encounter with the Plaintiff and his
installers) was witness to the Plaintiff’s attempts to bully the homeowner into
paying him in full. The defendant stated, “I will pay you in full when the job is
completed, and I obtain an efficient HVAC system.”
25. Agree in part to #24, but further states to clarifies, that the Defendant
actually stated, “both parties have rights, thus he has a right to be paid when the
HVAC problems was fixed, and she has the right to hold him accountable/liable
for the inadequate SYSTEM he designed and faulty sloppy install job. She refused
to pay for a brand-new system, that was already showing failures.
26. Disagree to # 25, the first inspection was done on August 5" and it failed.
On August.8", the Deputy building official Jack Mc Stravic, stated that because
the Plaintiff raised the issue of a law suit he could not get involved and that he had
to go back into the file and change the permit application because the original
application filed was for a “replacement” HVAC system either way, the inspector
never got in the attic to see the defective design and faulty workmanship, that was
causing the uneven HVAC system. At this time, is when he produced the first
design drawing for the county inspector. No inspection was performed on August
8", because the Defendant was at the Code enforcement office, meeting with Mr.
Mc Stravic, See attachment _E.
27. Agree to #26.
28. Agree to #27.
29. Disagree, with # 28, Plaintiff produced the document seen as Exhibit G on
August 19" but never provided it to the Defendant, the only demand for payment
the Defendant obtained was an email dated August 3, 2022, which was titled does
Your “REVISED” Invoice from First Charlotte with the amount now being,
$9,084.58, because the Plaintiff was now including a finance charge. Defendant
believes the “Final payment Affidavit” was created per the request of the attorney,
on August 18, 2022, but was never served on the Defendant, See Exhibit A.
30. I cannot answer, when they retained the undersigned law firm, but First
Charlotte could have filed their complaint Pro Se as they did the Lien, or they
could have fixed all the problems they created in the HVAC system immediately.
First Charlotte chose to hire a law firm, instead of finishing the job. I did receive a
phone call around August 30" from the assigned attorney, where in I was willing to
negotiate a settlement with the Contractor, which was a price of 8K, which is
equipment and labor, less the cost a of a 1 yr. HVAC warranty, they refused, and
again in October at a price of 6K, which is less modification costs for the kitchen
wall, before I hired EZ Air to fix the other design and the improper installation see
Exhibit
DECLARATION IN SUPPORT OF OPPOSITION TO
MOTION FOR SUMMARY JUDGEMENT
I Terry Lynn Dunn-Fischer, do declare and that the above answers/responses
and statements are based on the factual truth and clear evidence of the
situation/case and genuine ongoing dispute between the parties. I have personal
knowledge of the events, because I have had to suffer and endure the damages
created by the Plaintiff for his recklessness and intentional and deliberate actions
as evidence by his refusal to cure all the problems he created when he produced a
defective HVAC design which produced a damaged or faulty system when I
receive it. It was not Fit for purpose, and I was not able to use it for what the
contractor implied, to produce and furnish a Central HVAC System. Charlotte
8
county inspector did NOT inspect the functionality of the unit, the placement of the
ducts and did not inspect the flex/ductwork, because the Contractor filled out the
p
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IN THE COUNTY COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL ACTION FIRST CHARLOTTE A.C.& REFRIGERATION, INC., a Florida corporation, Plaintiff, V. Case No.: 22000945CC c os TERRY DUNN-FISCHER, © -_ Defendant. 2 ee ace 7 sh DEFENDANT’S MOTION TO AMEND/MOTION FOR RECONSIDER Comes Now, the Defendant Terry Dunn-Fischer in pro se fashion respectfully files this Motion to Amend her Motion for Reconsideration, pursuant to Florida Rule of Civil Procedure 12.190 and states: 1 Defendant files this Motion, to attach this court’s Default Judgement “handwritten” minutes/Ruling in fear that this court will deny her Motion to Reconsider, which should be (DIN 38), for failing to attach the same. 2 Defendant had referred to the handwritten “court minutes” created on August 17, 2023, in her Motion to Reconsider, seen as (DIN 37) on page 2, but now believes, it may be necessary to attach a “hard copy” of the same, to her original Motion, seen as Exhibit C. 3 To date the Defendant has not received a formal “Order” or a copy in response to her Motion to Reconsider from the Plaintiff, which may be due to Florida’s current “State of Emergency Status”. 1 WHEREFORE, Plaintiff respectfully requests that this court as relief, to allow her to attach this addendum to her Motion for Reconsideration related to this courts Default Judgement dated August 17, 2023, in this = Lo matter and such, fu hes) elief as the court deems just and proper. coe Terry D ann-Fischer, Pro Se~ 820 Conreid Dr. NE Port Charlotte, Florida 33952 CERTIFICATE OF SERVICE I, HEREBY CERTIFY that a true and correct copy of the forthgoing has been hand delivered to the Plaintiff’s attorney, John G. Beggan, ESQ, at 99 Nesbit Str eet Punta Gorda, Florida 33950 as identified in his yer Motion, on 1S. -H day of August 2023. i ~~ (—— érry Dunn-Fischer, Pro Se 820 Conreid Dr. NE Port Charlotte, Florida 33952 941-977-9010 dunnfischer@aol.com IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA COUNTY COURT MINUTES supe: BELL case NuMBER: “AAS: ZZ Ce DEPUTY CLERK: MHAZEL DATE: t \2=> COURT REPORTER: BAILIFF: RATES # Gece.) ORCI Fiesr cusetore ACH ATTORNEYS: PRESENT PLAINTIFF Present ¥ Shu Seb 102, N - Pes se Y N DEFENDANT PresentY Y N MOTIONS: LANA AVE GUNGK DENIED RESERVED WITHDRAW GRANTED DENIED RESERVED WITHDRAW GRANTED DENIED RESERVED WITHDRAW 4 GRANTED DENIED RESERVED WITHDRAW cas cate OBAS NIA Zoom Od LAVA cD NVOTIOR i, uett FAKE AEA AWit TEyv\ — INO Tr CASA rn LEXY DADE AC << cA r-\ WIAD or DMAT Fea DEE. Monic Cri rE AS Pet Sma) TO Ree OeDer Page of | Exhibit C! IN THE COUNTY COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL ACTION FILED FIRST CHARLOTTE A.C.& CLERK OF THE CIRCUIT COURT REFRIGERATION, INC., a Florida corporation, 0 2A \2% Plaintiff, Vv. Case No.: 22000945CC TERRY DUNN-FISCHER, Defendant. DEFENDANT’S MOTION FOR RECONSIDER/REQUEST TO AMMEND OPPOSITION TO MOTION FOR SUMMARY JUDGEMENT Comes Now, the Defendant Terry Dunn-Fischer in pro se fashion who files this motion for reconsideration Florida Rule of Civil Procedure 1.160. and Fla. R. Civ. P 1.190, to amend her Opposition to Plaintiff's Motion for Summary Judgement (DIN 36) and request to set aside the Default Judgement this court granted on August 17, 2023, under Fla. R. Civ. P. 1.500, granting the Plaintiffs Motion for Summary Judgement in total (DIN 34). Her Respectful requests are based on the Following. 1 The Defendant apologizes for missing the scheduled hearing on August 17, 2023, it was not intentional or a deliberate act of disrespect, it was a mis-calendar mistake, she wrote it down for Friday, August 18, 2023. The Defendant struggles with her Dyslexia but has been timely in all other actions in this case, see Fla. R. Civ.P. 1.540 (a) (b) and 1.530, case law indicates that excusable neglect causing a party to failto appear for a final hearing has been grounds for granting relief. Excusable neglect is found “where inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir. 2 The Defendant Terry Dunn-Fischer is a pro se litigate, who independently produced and filed a timely “Opposition to the Plaintiff's Motion for Summary Judgement” on June 30, 2023, which did include a signed Declaration Statement, seen as pages 8 and 9, pursuant to; Fla. R. Civ.P. 1.510, Summary Judgement, Procedures, says: Fla. R. Civ.P. 1.510, Summary Judgement, Procedures. C. (4) States that an Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated. 3. The Defendant believes this court granted the Movants motion in total, by default, because she was able to access the case docket over the internet in the early morning of August 18, 2023, once she realized her calendar date was wrong and read the handwritten court minutes seen as (DIN 37). 4 Since she is pro se and has yet to receive a clear court “finding” based Order stating why her Filed Opposition to the Plaintiff’s Motion was not seen as filed, except that there was no affidavit. She believes that this court granted the Movants Summary Judgement, in total by default, because the Defendant did not include a notarized Affidavit stating the same, which is a misstep based on a misinterpretation of the above Rule. The Defendant has now obtained said notarized affidavits and attached them to this Motion for Reconsideration and is respectfully requesting this court see them as an addendum to her Opposition for Summary Judgement, as a curative action and set it aside in accordance with rule 2 1.540(b)., Exhibit’s:‘G and H, are attached to this motion and added to the Defendant’s original Opposition to Summary Judgement, also identified as Exhibits G and H. 5 She respectfully requests this Under Fla. R. Civ.P 1.540.and 1.530, RELIEF FROM JUDGMENT, DECREES, OR ORDERS (a) Clerical Mistakes. Clerical mistakes in judgments, decrees, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party’s legal represéntative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect. 6. The Defendant makes claim that the Plaintiff's /Movants affidavit seen as Exhibit B, in fraudulent and was made in bad faith, see Rule Fla. R. Civ.P 1.540 (g) Affidavits Made in Bad Faith. If it appears to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith. An offending party or attorney may also be held in contempt or subjected to other appropriate sanctions. 7. The Defendant also raises her protection of Due process under her Fourteenth Amendment Rights: which states, Procedural due process, is based on principles of “fundamental fairness,” addresses which legal procedures are required to be followed in state proceedings. Relevant issues, such as the opportunity for hearing, confrontation and cross-examination, discovery, basis of decision, and availability of counsel. Substantive due process, although also based on principles of “fundamental fairness,” is used to evaluate whether a law can be applied by states at all, regardless of the procedure followed. Substantive due process has generally dealt with specific subject areas, such as liberty of contract or privacy. 8 Her Requests are also necessary under Federal Rule 56. For Summary Judgment: that states, the court should state on the record the reasons for granting or denying the motion. The "federal summary judgment standard" refers to the principles announced in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), and more generally to case law interpreting Federal Rule of Civil Procedure 56. On August 25, 2022, on its own motion, the Florida Supreme Court amended Florida Rule of Civil Procedure 1.530 now to require a motion for rehearing before challenging on appeal “the sufficiency of a trial court’s findings in the final judgment.” Whether by statute or by rule, certain orders issued by a circuit court must contain specific factual findings. A motion for rehearing is required to preserve the issue for appellate review. In the issuing opinion, the court wrote “We have determined that amendments to these rules are necessary to clarify that filing a motion for rehearing is required to preserve an objection to insufficient trial court findings in.a final judgment order.” In re: Amends. to Fla. Rule of Civil Procedure 1.530 & Fla, Fam. Law Rule of Procedure 12.530, No. SC22-756, slip op. at 1 (Fla. Aug. 25, 2022). In Eaton, the First District flatly held that the failure to move for rehearing before the circuit court waives the issue for appellate review. DISPUTE HISTORY AND FLORIDA BUILDING CODE 9 This case arose from a dispute between the parties, a homeowner and a Licensed HVAC Contractor who failed to. producé a clear “contract” but filed a signed Notice of Commencement “NOC” in Charlotte County, Fl. The Licensed Contractor produced an estimate for a job hé designed, which produced significant defects and faulty workmanship. The Contractor “First Charlotte” also breached his duty and obligation to which falls within the to supervise and inspect the work performed, See Gatwood v. McGee, 475 So. 2d 720 (Fla. Ist DCA 1985). A construction defect occurs whenever finished or partially completed construction fails to perform as required by applicable contract documents or accepted standards. A construction defect exists where the structure or any of its systems do not work as intended or should and manifestations of the defect must be corrected. The manifestation is the apparent condition of the structure, a component, or the materials that is caused by the construction defect, and which provides evidence of a deeper problem. If the contractor took the job and agreed to perform a specific job in exchange for money. If they don’t perform that job to the expectation or standards of the project owner, those parties are likely to request the contractor fix or finish the work, and they’!| withhold payment until they do so, which is what lead to this dispute. The Contractor “First Charlotte” Pulled the permit for this job, thus they are legally liable to comply with. The statute for Construction Defect Claims in Florida, in Chapter 558, applies to claims stemming from an assumed construction defect. Section 558.002(5), F.S., defines a “construction defect’ follows:“[A] deficiency in, or a deficiency arising out of, the design, specifications, surveying, planning, supervision, observation of construction, or construction, repair, alteration, or remodeling of real property resulting from: (a) Defective material, products, or components used in the construction or remodeling; (b) A violation of the applicable codes in effect at the time of construction or remodeling which gives rise to a cause of action pursuant to s. 553.84; (c) A failure of the design of real property to meet the applicable professional standards of care at the time of governmental approval; or (d). A failure to construct or remodel real property in accordance with accepted trade standards for good and workmanlike construction at the time of construction.” Pursuant to Florida Building Codes: “The failure of a contractor to supervise properly can result in the revocation or suspension of a license by the Construction Industry Licensing Board of the Department of Business and Professional Regulation, which regulates licensed contractors. See Alles v. Department of Professional Regulation, 423 So. 2d 624 (Fla. 5th DCA 1982); Hunt v. Department of Professional Regulation, 444 So. 2d 997 (Fla. Ist DCA 1983).” MEMORANDUM OF LAW A. PRO SE STANDARD OF REVIEW Generally, “The courts provide pro se parties wide latitude when construing their pleadings and papers. When interpreting pro se papers, the Court should use common sense to determine what relief the party desires.” S.E.C. v. Elliott, 953 F.2d 1560, 1582 (11th Cir. 1992). See also, United States v. Miller, 197 F.3d 644, 648 (3rd Cir. 1999) (Court has special obligation to construe pro se litigants pleadings liberally); Poling v. K. Hovnanian Enterprises, 99 F.Supp.2d 502, 506- 07 (D.N.J. 2000). Because the Plaintiff is pro se, the Court has a higher standard when faced with a motion to dismiss, White v. Bloom, 621 F.2d 276 makes this point clear and ‘states: A court faced with a miotion to disiiss a pro se complaint must read the complaint's allegations expansively, Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652 (1972), and take them as true for purposes of deciding whether they state a claim. Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079, 1081, 31 L. Ed. 2d 263 (1972). WHEREFORE, Plaintiff respectfully requests as Relief, that this court grant her Motion for Reconsideration to put aside this courts Default Judgement dated August 17, 2023, recognize her Filed Opposition for Summary Judgment with the new attached Affidavits and reschedule the missed hearing, in this matter and such further relief as the court deems just and proper, — Terry Dunn-F, er, Pro Se 820 Conreid Dr. NE Port Charlotte, Florida 33952 CERTIFICATE OF SERVICE I, HEREBY CERTIFY that a true and correct copy of the forthgoing has been hand delivered, to the Plaintiff’s attorney, John G. Beggan, ESQ, at 99 Nesbit Street, Punta Gorda, Florida 33950 as identified in his Motion, ont py August 2023. GZ rry OT <= ——— Le e Dann-Fischer, Pro Se 820 Conreid Dr. NE Port Charlotte, Florida 33952 941-977-9010 dunnfischer@aol.com IN. THE COUNTY COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL DIVISION FIRST CHARLOTTE A.C.& REFRIGERATION, INC., a Florida corporation, Plaintiff, Vv. Case No.: 22000945CC TERRY DUNN-FISCHER, Defendant. AFEIDAVIT OF ANNALYSE DUNN-FISCHER STATE OF FLORIDA } COUNTY OF CHARLOTTE } BEFORE ME, the undersigned authority personally appeared ANNALYSE DUNN- FISCHER, who, being sworn, deposes and says: 1 Iam a Florida Resident, over 18 years of age, and competent to testify. 2. Ihave personal knowledge of all the facts stated herein. 3. Iam the daughter and reside with the Defendant in this action, between FIRST CHARLOTTE A.C. & REFRIGERATION, INC., (‘First Charlotte”) and TERRY DUNN- FISCHER. 4. I am a witness to all “on site” interactions between the Plaintiff, (“First Charlotte”)/ JOE CELLAMARE and his “CREW/INSTALLERS/REPRESENTATIVES” and TERRY DUNN- FISCHER, during the estimate process/ the entire installation process on August 2, 2022, and on the day after August 3, 2022. 5 At the end of the installation process, the crew stated that the job was done and asked “US” to inspect the placement and efficiency of the job. Joe Cellamare was not present during the installation process and did not show up at the end of the job. @ \ evtubt Gr 6 Terry Dunn-Fischer identified multiple problems associated with the placement of the ducts, thermostat placement, and the total lack of air flow to the three drops in the 2 bedrooms and the bathroom. 7 Terry Dunn-Fischer raised all the above issues and concems with the crew and was told that “they had to call Joe” and then stated “that Joe Said he would come by in the am to fix the problems, also Joe Cellamare refused to talk to Terry Dunn-Fischer that night and the crew left the job. 8 I personally identified the lack of air flow, with my mother Terry Dunn-Fischer, to the 3 drops in the bedrooms and bathroom. At this time, one of his crew climbed on the ladderin the attic space and moved “something around”, but even after that there was minimal air flow to this side of the house. My mom stated, “please make sure Joe knows about these problems.” 9. When the crew left our house, they stated that “JOE” would come by in the morning to address and fix all of the problems, issues and address her concerns. 10. ° Joe Cellamare, did show up at our residence in the am of August 3, 2022, by he came by himself and refused to inspect the job! He did NOT come any further than the front door after my mother asked him to look at all the issues and then stated, “That the air flow was fine and that he would not “fix” anything until he was paid in full”. 11. My mother Terry Dunn-Fischer, stated “‘she would be glad to pay him in full and even extra if he would fix all the problems, to include adequate air flow to the back rooms and figure out how to get air flow to the living room that did not have a duct/drop. 12. Joe Cellamare then stated because we were here, at the house during the installation, that we should have supervised his crews’ work. 13. My mother Terry Dunn-Fischer” tried to work with “First Charlotte” to fix all the problems associated with the NEW HVAC system, but her requests were denied in total by “First Charlotte”. In December of 2022, 4 months after she openéd the kitchen walls, she contacted other 14. Licensed HVAC Contractors to assess and fix all the problems related to “First Charlottes” installation job. 15. She choose to use “EZE Air Solutions” because their technician climbed up into the attic and made a list of the problems that he identified, that needed to be changed, fixed, and moved to allow adequate and balanced air flow to all areas of our house. 16. After and only after, “EZE AIR” fixed all the problems that were found, the air flow was then adequate and balanced to the best of its ability, based on the 6 drops, open kitchen walls and a drop placed in the living room area. @ "Ctl C a 17. At NO time did “FIRST CHARLOTTE/ JOE CELLAMARE” supervise, inspect, fix or agree to cure the problems associated with his Estimate. 18. As of the date of this Affidavit, First Charlotte has refused to inspect or fix any of the problems that were produced by their design, installation, and the Plaintiff's bad faith actions. FURTHER AFFIANT SAYETH NAUGHT. <5 ——e Annalyse Dua cher STATE OF FLORIDA } COUNTY OF CHARLOTTE ) Aca Swom to me and subscribed befor me by means of [ [physical presence or [ ] online notarization, this_2/ dayof _Anuw , 2023 by Annalyse Dunn-Fischer [ ] who is personally known to me or [ ] has produced_Fl_ ow - (cease as identified. J Sr eANPeELL No Public | = Gm Notary Publicton- 9.6G State of 952944 se ny Comm. & xpir 05 ADT ie fended Tanett harphell Printed Name of Notary (Notary Seal] Ml ‘| poet IN THE COUNTY COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL DIVISION FIRST CHARLOTTE A.C.& REFRIGERATION, INC., a Florida corporation, Plaintiff, Vv. Case No.: 22000945C TERRY L. DUNN-FISCHER, Defendant. A FFIDAVIT OF TERRY DUNN-FISCHER STATE OF FLORIDA } COUNTY OF CHARLOTTE } BEFORE ME, the undersigned authority personally appeared TERRY L. DUNN-FISCHER, who, being sworn, deposes and says: 1 Iam a Florida Resident, over 18 years of age, and competent to testify. 2. Ihave personal knowledge of all the facts stated herein. 3 Iam the Defendant/Counter Plaintiff, in this Civil action, between myself and FIRST CHARLOTTE A.C. & REFRIGERATION, INC.; (“First Charlotte”). 4. Ihave produced and filed the appropriate documents, titled “Defendant’s Opposition to Plaintiffs Motion for Summary Judgment” in Pro Se fashion, which included a sigried Declaration Statement on June 30, 2023, consistent with The Florida Civil Procedural Regulations. 5 [am a witness to all interactions between the Plaintiff, (“First Charlotte”)/ JOE CELLAMARE and his “CREW/INSTALLERS/REPRESENTATIVES” and myself TERRY "Bytlba 4” DUNN-FISCHER, during the estimate process/ the entire installation process on August 2, 2022, and on the day after August 3, 2022. 6 I, Terry Dunn-Fischer was on site during the installation process, when the Plaintiff's crew stated that the job was done and asked “US” to inspect the placement and efficiency of the job. Joe Cellamare was not present during the installation process, he never checked in with his crew and refused to discuss the problems related to the Job, when contacted by his crew, before they left the residence on August 2, 2022. 7 I, Terry Dunn-Fischer identified multiple problems associated with the placement of the ducts, the thermostat placement, and the total lack of air flow to the three drops in the 2 bedrooms and the bathroom. When I addressed the lack of a drop in the living room area, one of r Joe’s crew, stated “I knew this was not going to work 8 I, Terry Dunn-Fischer raised all the above issues and concerns with the crew and was told that ‘they had to call Joe” and then they stated, “that Joe said, “he would come by in the am to fix the problems”, also Joe Cellamare refused to talk to Terry Dunn-Fischer that night and the crew left the job. 10. I, personally identified the lack of air flow, with my daughter Annalyse Dunn-Fischer, onsite witness, to the 3 drops in the bedrooms and bathroom. At this time, one of his crew climbed on the ladder in the attic space and moved “something around”, but even after that there was minimal air flow to this side of the house. I then stated, “please make sure Joe knows about all of these problems.” 11. Before the crew left my Residence, they stated that “JOE” would come by in the morning to address and fix all the problems and issues to address my concerns, to include not placing a drop in the living room. 12. On August 3, 2022, Joe Cellamare (president and owner of First Chalotte) did show up at our residence in the am, but he came by himself and refused to inspect the job! 13. He did NOT inspect the Job; he did not come any further than the front door of my house. He stated, “That the air flow was fine and that he would not “fix” anything until he was paid in full”. 14. I, Terry Dunn-Fischer, stated “I would be glad to pay him in full and even extra if he would fix all the problems, to include adequate air flow to the back rooms and figure out how to get air flow into the living room that did not have a duct/drop. 15. Joe Cellamare also stated, “that because my daughter and I were here all day, we could have and should have supervised the job.” 16. I, Terry Dunn-Fischer” made every attempt to resolve all the problems to obtain an adequately functioning HVAC system, as was implied per our Estimated agreement, for ‘axlubt “First Charlotte” to fix all the problems associated with the NEW HVAC system. I even requested the same in writing via email, but my requests were denied in total by Joe the president and licensed person for “First Charlotte”. I was not aware of the origin of all the problems with the system, until I reached out to other contractors to identify that his design plan and installation was substandard. 17. In December of 2022, 4 months after I took necessary modification steps to open my kitchen walls, I contacted three other Licensed HVAC Contractors to evaluate why my home, did not have adequate and balanced air flow, The problems needed to be fixed, since due to the lack of balanced air flow, I still had window units in my bedrooms. 18. I, choose to use “EZE Air Solutions” because their technician “Chuck” climbed up into the attic and made a list of all the problems that he identified, that needed to be changed, fixed, and moved to allow adequate and balanced air flow to all areas of our house, which were placed in their Estimate and priced appropriately. 19. After, “EZE AIR” fixed all the problems that were found, as seen in their estimate, and provided at a fair pri¢e, the air flow was then adequate and balanced to the best of its ability, based on the 6 drops, open kitchen walls and a drop removed from the pantry, and another placed in the living room area. 20. At NO time did “FIRST CHARLOTTE/ JOE CELLAMARE” supervise, inspect, fix or agree to cure the problems identified at the end of “Installation Day.” 21. Joe Cellamare stated, “You are nothing, but a SCAMMER and I am not doing any more work until I am paid in Full”, I believe he was trying to Bully and harassed me, into paying for an inadequate HVAC System. 22. I, Terry Dunn-Fischer, contacted the Charlotte County Code Investigators office and spoke with the investigator, who advised me to ‘Not pay him a penny until you are happy with the Job” and that “I should give him notice, prior to filing a complaint with the office of regulations in Tallahassee, Florida against his license” to request an investigation for the suspected design defects he created. 23. As of the date of this Affidavit, “First Charlotte” has refused o inspect or fix any of the problems that were produced and created by their design and installation flaws. 24. believe that Plaintiff Joe Cellamare intentionally acted in bad faith, lied on his affidavit, and refused to respect my rights under the law, because I am a woman. 25. I Terry L. Dunn-Fischer, have NO history of being a “scammer”, I was debt free in August 2022, with a credit score in the 800’s, with sufficient funds to honor my commitment to the Estimate for a New Adequately Functioning central HVAC system, that “First Charlotte” proposed and failed to install, on August 2, 2022. * edule FURTHER AFFIANT SAYETH fF Terry L. Dunn-Fischey” (ze STATE OF FLORIDA } COUNTY OF CHARLOTTE } Aas Sworn to me and subscribed before me by means of [Tphyhysical presence or [ ] online notarization, this_2__ day of, 2023 by Terry Dunn-Fischer C j who iis personally secon known to me or [ ] has produced as identified gine, JANET CAMPBELL Notary Public - State of Florida Not Public y Commission # GG 952944 hy Comm, Expires Apr 15, 2024 Bonded through &National Notary Assn. ok — Jane Ltn Me I| Pri inted Name of Notary (Notary Seal] IN THE COUNTY COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL ACTION FIRST CHARLOTTE A.C.& REFRIGERATION, INC., to, % &My a Florida corporation, Sy &g Plaintiff, Case No. 22000945CC So Vv Hearing Date: Aug. 17,.2023 TERRY DUNN-FISCHER, Time: 08:30 am EST Defendant. Judge: Honorabie Peter A. Bell Virtual Conference Meeting ID: 510 984 5491 Call-in: 786-635-1003 Link: https://zoom.us/j/5109845491 Via Zoom )EFENDANT’S OPPOSITION TO PLAIN’ ” MOTION FOR SUMMARY J EMENT Defendant hereby submits its Memorandum of Points and Authorities in Opposition to Plaintiff's Motion for Summary Judgment, received via US Mail on June 24, 2023, for the reasons set forth below INTRODUCTION 1 This case arouses from a genuine dispute of a unfished Job related to ani “Estimate” between the Plaintiff, FIRST CHARLOTTE A.C.& REFRIGERATION, INC (‘First Charlotte”) the Licensed Contractor, who provided/produced a defective HVAC system, goods and services, under the Home Improvement Consumer Protection Act and the Defendant TERRY DUNN- FISCHER (“Homeowner”) who requested him to fix/cure the faulty design and 1 ductwork installed improperly which created a defective HVAC System, immediately, See Exhibit A. “The American Society of Civil Engineers (ASCE) Technical Council on Forensic Engineering has defined “failure” “an unacceptable difference between expected and observed performance. The factors that may be considered to determine whether a condition is a “defect” that would result, such as building codes, industry standards, written contracts and the cause of the condition, whether it is a result of the construction process; defective design, poor workmanship, faulty materials and whether the condition needs to be repaired. Improper Installation can produce; Indoor temperatures falling far from the mark set by the thermostat, poor airflow, and hot and cold spots throughout the house. Flexible ductwork, when installed improperly, can create extremely high resistance to the flow of air, known as friction loss”. 2. The Plaintiff/First Charlotte (a Florida Licensed HVAC Contractor) only produced an Estimate/Proposal based on his design for a complete and New adequately functioning HVAC system to be placed in the Defendant’s primary residence (a older home) on July 5, 2022. There is no document that is titled “Contract” in this case and the Defendant was never provided a drawling of the design to review with the Estimate/Proposal or notice of commencement, because a drawling or design draft was never produced, until the Job failed the county inspection, on August 5t, 2022. 3 On July 13, 2022, the Defendant signed the requested “Notice of Commencement Document” and was advised that this document was.necessary to obtain the work permit. This signed Document clearly states under the “Warning Section” that said job/agreement is deemed as a “Home improvement”, subject to the guidelines of the Florida Home Improvement Consumer Protection Act. This Act is intended to provide protection to consumers from deceptive or unfair practices, and in this context, allows a homeowner to recover treble (three times) damages, when an improper design and faulty workmanship, results in a faulty system/product. Then First Charlotte applied for a permit, under the work to be done as a replacement. 4 The Defendant/homeowner has never agreed to pay the Plaintiff any amount of money for the installation of an inadequately functioning HVAC System. 5 The Defendant raised the multiple problems associated with the “job” to the installers at the end of the Job, on August 2, 2022, and again with the owner/contractor, the next morning, on August 3, 2022 when he came to her residence to collect a full payment check, but refused to assess and evaluate the problems identified by the homeowner with his services. She then raised the same multiple issues in an email to First Charlotte, giving them every opportunity to cure the problems, See Exhibit A. 6 Because the Defendant wanted the problems cures, she contacted Charlotte County Building Code Inspector, Tom Atkinson on August 3, 2022 @ 941-268- 9785 for advice on how to process to resolve the construction failure/problems. Mr. Atkinson stated that “The Contractor has a responsibility to fix the problems, and that I should not pay him anything until the Job is completed.” He also advised the Defendant to file a complaint with the Fl. Licensure Board after giving the Plaintiff written Notice of her intent under the Florida Construction Defect Statute CH. 558 as a pre-suit Notice, See ExhibitB. 7 Plaintiff filed a Lien on Defendant’s property on August 4, 2022, even before the first failed Inspection, which was done on August 5”. Then Defendant filed Notice of Contest of Lien on August 9, 2022, based on the “failed” defective design of the product/services. RESPONSES/OBJECTIONS TO PLAINTIFF’S SUPPORTING FACTS 8. Agree to #7, that Defendant meet with Joe Cellamare at her residence in June 2022, to obtain an Estimate/proposal for services to install a brand-new HVAC system (central air) in her home, which had never had central air. The importance and main purpose of HVAC construction is the Heating, Ventilation and Air- Conditioning (HVAC) system are to help maintain good indoor air quality (IAQ) through adequate ventilation with filtration and provide thermal comfort. 9 Agree to # 8. 10. Agree to #9. 11. Disagree, # 10, and further states, Defendant voiced her plans to place a partial wall from the backside of the panty to the front wall at the second window to enclose that area as an extra bedroom, but at NO time did she say, that she was going to tear down the existing load bearing wall from the kitchen to the living room: This statement in the Plaintiff’s Affidavit, is a false coached statement, since that wall is a load bearing wall and impossible to remove. The plaintiff, Mr. Cellamare, as a licensed contractor, should have known this if he had properly inspected the framing in the attic. Also, Mr. Cellamare, NEVER informed the Defendant that he did not plan to place a drop (air Duct) in her living room (larges room in the house), if he had, the poor design would have been rejected and the need for the same would have been addressed at the initial estimate meeting. This is a deceptive statement. 12. Disagree, # 11 The Estimate/proposal did not have attachments, and neither of them were ever signed by the Defendant, it was just an estimate, most likely because the Defendant’s house is old and when home improvements are done on older houses, there may need to be changes made to the original plans, if issues arise, during the job. Defendant is aware that old houses can be a pandoras box situation. The Plaintiff “First Charlotte” never produced a clear Contract, to be signed for this Job. 13. Agree in part and Dispute in part to # 12, and further states, the Job was not completed on August 2, 2022, because it did not produce adequate air in 3 out of the 6 drops, and the other 3 drops placed in one area created extreme air flow, the install lacked adequately balanced functioning HVAC system in her house, the install was inadequate to meet-the needs of the residence and seen as incomplete, she did not agree, as no one would to pay for a faulty system, this clearly was not a benefit to the Defendant, who is the consumer. 14. Agree in part to #13, but raises the proof and evidence, that the estimate included the size of the unit, the ariount of drops and the returns, what it did not clarify/state or address was that his intent in his design to forfeited a drop in the 4 Livingroom and placed 3 drops in one area was because he never intending to raise the Plenum up into the attic to allow adequate air flow to the other 3 drops, he planned to place the thermostat in the same area, less than 2 foot away from 3 drops, and that the 2ton unit size he chose did not have enough “air force” to add another drop in the Livingroom, which would have balanced the air and made it able to reach the bedrooms and bathroom. He also recklessly chose to not supervise the project and allowed his installers to keep more than 5 feet of duct/flex uncoiled in the Defendant’s attic, making the air unable to reach the bedrooms and bathroom. Flexible ductwork, when installed improperly, can create extremely high resistance to the flow of air, known as friction loss, See Attachments, =C 15. Disagree to # 14, the Estimate was to obtain an adequately functioning HVAC system that came with a 1 yr. labo warranty, which was to cover all problems/ deficit’s found or identified by the homeowner in an immediate and latened fashion. The Defendant never agreed to pay for a faulty system/product and gave the Plaintiff every opportunity to inspect the job and cure the problems, he refused to stand by his work. His actions were deceptive, unfair and deliberate. 16. Agree to # 15 in part and further states that at the time the Defendant wrote that email she was unaware of all the other defects the Plaintiff's design plan and faulty installation produced. She was made aware of thesé defects, when she obtained an Estimate to cure all the problems, the Plaintiff created to include, but not limited to; changing out the third drop, which the Plaintiff designed to be placed from the Plenum right above the Thermostat, making the Thermostat miss read the Temperature of her home, especially in the areas where there was NO air flow, see Exhibit C. 17. Disagree to # 16, there is no signed document that is titled “Contract” in this case and the Defendant did not sign any attachments to the Estimate/Proposal, the Defendant has failed to include a signed document to support his so-called Factual Position. 18. Disagree to # 17, but further clarifies that the 2-ton sized unit he used in his design plan is too small to allow another “living roo! drop. It can only support 6 drops, thus the placement of the drops was imperative to produce an efficient HVAC system, so Homeowner had to modify her kitchen to allow air flow into the living room, at a cost of $ 2,000 for supplies and labor, on October 6", 2022, more than 60 days after she gave notice, to the Contractor, See Exhibits D. 19. Agree to # 18, 20. Agree to # 19 in part but further states, the Plaintiff only allotted one day to complete the job and the workers started at 08:30 and stopped working, when it was dark. But they did text Joe to let him know that that Deféndant was not in agreement that the job was done, that the air quality was not acceptable, and she viewed the agreement as being incomplete, due to the multiple problems she identified at the end of the day on August 2, 2022. 21. Agree to # 20 in part but refers to her answer in #20. The Plaintiff is the one who assigned a 12hr job in an Shr workday, not the Defendant. 22. Disagree to #21, the Plaintiff refused to produce a proficient and efficient HVAC system, to include adequate air flow consistent with a central HVAC system installation. 23. Disagree to #22, and further states, The Plaintiff refused to inspect his “final Job” to inspect the “system” he installed when he arrived at the Defendant’s door and in fact, he initially refused to even come in the house to assess/evaluate or identify her concerns. When he did come in, He stood at the doorway (His statement of inspecting the property is False) all he did was demanded that the Defendant pay him in full. His first statement was that “He didn’t need to supervise or inspect the work/installation, because the defendant was home all day. He did identify, while standing at the door, that his workers threw away a shelving unit because they destroyed it. The Plaintiff’s affidavit is coached and filled with false statements. 24. Agree to #23 in part, at the time the Defendant was asking for an additional drop be placed in the living room, she was not aware that this action was impossible due to the size of the unit installed per the Plaintiff's design plan. The 2-ton unit could NOT adequately supply 7 drops. This truth only came out when the homeowner/Defendant obtained 3 other estimates to cure the problems associated with the system the Plaintiff installed: The Defendant’s daughter (who is over the age of 18 and present during every encounter with the Plaintiff and his installers) was witness to the Plaintiff’s attempts to bully the homeowner into paying him in full. The defendant stated, “I will pay you in full when the job is completed, and I obtain an efficient HVAC system.” 25. Agree in part to #24, but further states to clarifies, that the Defendant actually stated, “both parties have rights, thus he has a right to be paid when the HVAC problems was fixed, and she has the right to hold him accountable/liable for the inadequate SYSTEM he designed and faulty sloppy install job. She refused to pay for a brand-new system, that was already showing failures. 26. Disagree to # 25, the first inspection was done on August 5" and it failed. On August.8", the Deputy building official Jack Mc Stravic, stated that because the Plaintiff raised the issue of a law suit he could not get involved and that he had to go back into the file and change the permit application because the original application filed was for a “replacement” HVAC system either way, the inspector never got in the attic to see the defective design and faulty workmanship, that was causing the uneven HVAC system. At this time, is when he produced the first design drawing for the county inspector. No inspection was performed on August 8", because the Defendant was at the Code enforcement office, meeting with Mr. Mc Stravic, See attachment _E. 27. Agree to #26. 28. Agree to #27. 29. Disagree, with # 28, Plaintiff produced the document seen as Exhibit G on August 19" but never provided it to the Defendant, the only demand for payment the Defendant obtained was an email dated August 3, 2022, which was titled does Your “REVISED” Invoice from First Charlotte with the amount now being, $9,084.58, because the Plaintiff was now including a finance charge. Defendant believes the “Final payment Affidavit” was created per the request of the attorney, on August 18, 2022, but was never served on the Defendant, See Exhibit A. 30. I cannot answer, when they retained the undersigned law firm, but First Charlotte could have filed their complaint Pro Se as they did the Lien, or they could have fixed all the problems they created in the HVAC system immediately. First Charlotte chose to hire a law firm, instead of finishing the job. I did receive a phone call around August 30" from the assigned attorney, where in I was willing to negotiate a settlement with the Contractor, which was a price of 8K, which is equipment and labor, less the cost a of a 1 yr. HVAC warranty, they refused, and again in October at a price of 6K, which is less modification costs for the kitchen wall, before I hired EZ Air to fix the other design and the improper installation see Exhibit DECLARATION IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY JUDGEMENT I Terry Lynn Dunn-Fischer, do declare and that the above answers/responses and statements are based on the factual truth and clear evidence of the situation/case and genuine ongoing dispute between the parties. I have personal knowledge of the events, because I have had to suffer and endure the damages created by the Plaintiff for his recklessness and intentional and deliberate actions as evidence by his refusal to cure all the problems he created when he produced a defective HVAC design which produced a damaged or faulty system when I receive it. It was not Fit for purpose, and I was not able to use it for what the contractor implied, to produce and furnish a Central HVAC System. Charlotte 8 county inspector did NOT inspect the functionality of the unit, the placement of the ducts and did not inspect the flex/ductwork, because the Contractor filled out the p