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Florida Construction Law News

26JAN 2014

Statute of Limitations and Statute of Repose in Florida Construction Law Matters

by Thomas Shea

Florida’s Second District Court of Appeal recently issued an opinion changing the burden under Florida’s Statute of Repose for a party to demonstrate that a lawsuit based on the “design, planning, or construction of an improvement to real property” was barred for not being filed within the allotted period of time. § 95.11(3)(c), Fla. Stat. This decision will likely be favored by plaintiffs rather than defendants as it will arguably allow plaintiffs to proceed with a construction defect lawsuit upon demonstrating there is “the slightest doubt that a genuine issue of material fact might exist” as to whether the action is barred by Florida’s Statute of Repose. Clearwater Hous. Auth. v. Future Capital Holding Corp., et al., 38 Fla. L. Weekly D2323a (Fla. 2d DCA 2013).

Florida’s Statute of Repose and Latent Defects

Florida's Statute of Limitations & Statute of Repose
Florida’s Statute of Limitations

In Florida, construction defect lawsuits typically must be filed within four (4) years from the latest of the following scenarios:

  • the date of actual possession by the owner,
  • the date of the issuance of a certificate of occupancy,
  • the date of abandonment of construction if not completed, or
  • the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer.

§ 95.11(3)(c), Fla. Stat. If the action involves a latent defect, “the time runs from the time the defect is discovered or should have been discovered with the exercise of due diligence.” Id.

However, in an effort to avoid creating what seems like an unlimited statute of limitations for construction lawsuits involving latent defects, Florida’s Statute of Repose requires these construction law actions to be commenced no later than ten (10) years after the latest of the above-referenced scenarios. Id.

The Second District’s Opinion in Clearwater Housing Authority v. Future Capital Holding Corp.

In 1998, numerous entities, including Future Capital Holding Corp. (“Future Capital”), were hired to construct apartments in Clearwater. Clearwater Housing Authority (“Clearwater Housing”) later purchased the property. The certificate of occupancy was issued and Clearwater Housing took possession of the property in 2000, but the final plat was not submitted by the engineers on the project–Florida Design Consultants–until 2003. In 2009, Clearwater Housing sued numerous entities involved in the project for negligence and construction defects. In 2011, Clearwater Housing named Future Capital as a defendant.

Future Capital attempted to argue that Florida’s ten (10) year Statute of Repose had run and therefore barred the action because the certificate of occupancy for the project was issued and the owner took possession of the property in 2000. On the other hand, Clearwater Housing argued that the engineers on the project did not complete the original contract until the final plat was submitted in 2003, thus providing Clearwater Housing until 2013 to name Future Capital as a defendant. The trial court agreed with Future Capital and held that the action was barred since Future Capital was not named until 2011, more than ten (10) years after the certificate of occupancy was issued. This decision, however, was reversed by Florida’s Second District Court of Appeal.

Specifically, the Second District explained that “in Florida, limitations defenses are not favored.” Allan & Conrad, Inc. v. University of Cent. Fla., 961 So.2d 1083, 1087 (Fla. 5th DCA 2007). As such, since Clearwater Housing and Future Capital both submitted affidavits with conflicting statements regarding whether worked performed by certain engineering professionals was performed pursuant to the original contract, this was enough to create a genuine issue of material fact. Baldwin v. Nature’s Hideaway, Phase I-B Homeowners Ass’n, Inc., 613 So.2d 1376, 1378 (Fla. 2d DCA 1993) (holding that summary judgment is improper if the record reflects even the slightest doubt that a genuine issue of material fact might exist) (emphasis added). Accordingly, the Second District concluded that Clearwater Housing had until 2013 to name Future Capital as an additional defendant under Florida’s Statute of Repose.

Posted By Thomas Shea