Submission of Pre-Suit Claim Notice Required by Construction Defect Statute Timely ‘Commences the Action’ Within the Meaning of the Florida Statute of Repose

Gindel v. Centex Homes, 2018 Fla. App. LEXIS 13019 (Fla. 4th DCA Sept. 12, 2018)

 A group of townhome owners (the “Homeowners”) sued the contractor and a subcontractor (collectively, “Contractor”) who built their townhomes, alleging that Contractor performed defective work.  Contractor had completed construction and conveyed the townhomes to the Homeowners on March 31, 2004.  The Homeowners did not discover the alleged defect until years later.  On February 6, 2014, nearly ten years after Contractor completed the work, the Homeowners notified Contractor of the claimed construction defect.  The Homeowners provided that notice in accordance with Florida’s construction defect statute (Fla. Stat. §§ 558.003; 558.004) that requires pre-suit notice of construction defect claims.  The Homeowners completed the statutory pre-suit procedure and filed their lawsuit on May 2, 2014, more than ten years after taking possession of the townhomes.

Contractor argued that Florida’s ten-year statute of repose barred the lawsuit.  While acknowledging that they filed their lawsuit beyond the ten-year period, the Homeowners stressed that the claims were timely because the action truly had commenced within the ten year period when they submitted the pre-suit notice of claim.  The trial court agreed with Contractor and entered summary judgment in its favor.  The Homeowners appealed.

On appeal, the Fourth District Court of Appeals analyzed the text of the statute of repose.  That statute requires “an action” to be commenced within ten years, and it defines “action” as a “civil action or proceeding.”  The Homeowners argued that their pre-suit notice of claim commenced a multi-step “proceeding” – and thus an “action” – for purposes of the statute.  The appellate court agreed, finding that the construction defect statute establishes a continuum of mandatory steps that a claimant must take to recover for a construction defect, and that taking the first step, i.e. submitting pre-suit notice of claim, commences the action.

The court further noted that interpreting “action” in the statute of repose to include only a civil action or lawsuit would read the words “or proceeding” out of the statutory definition.  Similarly, it found that if the legislature had intended “proceeding” to mean only judicial proceedings, it could have added that word to the definition.  The Court thus found Contractor’s interpretation  to be at odds with the language used in the statute of repose.

Finally, the court rejected the trial court’s conclusion that Homeowners should have invoked a stay provision in the construction defect statute to timely file their lawsuit.  The stay provision allows a claimant to commence a civil action before submitting pre-suit notice of the claim and then to stay the case while completing the pre-suit notice procedure.  The appellate court acknowledged that Homeowners could have done so, but found that their failure to do so had no bearing on the timeliness of the action.  Because the pre-suit notice of claim is a proceeding that commences the action, the Homeowner’s decision not to invoke the stay provision could not alter the conclusion that the action was timely commenced with the notice of claim.

To view the full text of the court’s decision, courtesy of Lexis®, click here.

Stephen W. Kiefer

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