Prior to the Fourth District Court of Appeal’s recent decision in Robert Gindel, et al. v. Centex Homes, et al., 43 Fla. L. Weekly D2112d (Fla. 4th DCA Sept. 12, 2018), Florida courts had not directly addressed the issue of whether the mandatory pre-suit notice for construction defects under Chapter 558 qualifies as an “action,” pursuant to the statute of repose in Chapter 95.
Gindel v. Centex is a construction defect case for damages arising from the alleged improper construction of townhomes. On March 31, 2004, the Homeowners closed on and took possession of the townhomes constructed by Centex and its subcontractors. On that date, the statute of repose, section 95.11(3)(c), Florida Statutes (2014), began to run as to any construction defect, the expiration of which was ten years later. After discovering the alleged defect, on February 6, 2014, the Homeowners provided the Chapter 558 requisite pre-suit notice of defect to Centex. At the conclusion of the mandatory pre-suit procedure, Centex declined to cure the alleged defect. The Homeowners filed suit on May 2, 2014.
A new amendment to §95.11, Florida Statutes, may impact Construction Law in Florida. The revision to §95.11(3)(c) was approved by Governor Rick Scott on March 23, 2018 upon the signing 2018 Fla. HB 875. The amendment again aims to modify the Statute of Repose period for latent defect actions. The Statute of Repose specifically time bars any action for latent defect arising out of the design, planning or construction of an improvement to real property based on a fixed time period.
While considered procedural, the “relation back doctrine” has a substantive effect that can either be a life-saver or a frustration (depending on what side of the issue you are on). The doctrine allows an amendment to a pleading, well after the original filing and service of that pleading, to relate back to the date of the original pleading. So, for example, for a case filed in 2014, an amendment to a pleading filed in 2017 will be treated as if the amendment was part of the original pleading filed in 2014. The doctrine is well-established in both Florida and federal law.
Alabama’s statutes of limitations and repose are alive and well! Cole, Scott & Kissane, P.A. (“CSK”) recently prevailed on a Motion for Summary Judgment—and in defending the plaintiff’s subsequent appeal to the Supreme Court of Alabama—arguing that the plaintiff’s (an Association) lawsuit against a construction subcontractor was barred as untimely under both of Alabama’s statute of limitations and statute of repose.
It is a fairly common fact pattern in construction defect claims: A design professional, such as an architect or engineer, is contracted by a client to provide a design, and perhaps perform construction administration for, an improvement to real property. Construction is completed, and everything seems fine for four or more years until the client asserts defects and deficiencies that implicate the services of the design professional. Upon further investigation, it appears the client knew of the alleged defects and deficiencies for at least two years before filing suit for professional negligence. The question invariably arises, “are the claims barred by the statute of limitations?”
In Brock v. Garner Window & Door Sales, Inc., Florida’s Fifth District Court of Appeal rejected a novel attempt to circumvent Florida’s well-established four-year statute of limitations for all actions founded on the construction of an improvement to real property. Plaintiff filed a lawsuit alleging breach of contract as a result of water intrusion damage Read More…
As Florida’s 2016 Legislative Session approaches, two companion bills have been introduced – Senate Bill (“SB”) 316 and House Bill (“HB”) 297. These bills seek to address the interpretation and application of the statute of repose set forth in § 95.11(3)(c), Florida Statutes. Intended to impose finality on the availability of claims for latent defects, the statute Read More…
The Fifth District Court of Appeal of the State of Florida recently issued an opinion in Cypress Fairway Condominium Association, Inc. v. Bergeron Construction Co., Inc., No. 5D13-4102, 2015 WL 2129473 (Fla. 5th DCA May 8, 2015), directly addressing the issue of when a construction contract is complete for purposes of determining if a lawsuit Read More…