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Calculating When the Clock Starts Running on Statutes of Repose in Florida Construction Litigation

In almost any type of civil litigation, there is a finite period of time during which you are allowed to bring your case to court. Understanding what these periods are, and when they start running, is vitally important so that you do not risk losing your right to sue. A Central Florida condominium association was an example of this, since it was only allowed to proceed with its lawsuit after it persuaded the 5th District Court of Appeal that it filed its case on the last day before the statute of repose expired.

The suit involved the Cypress Fairway apartment complex in Orlando, which was reworked into a condo community. The project included both converting the apartments into condos as well as some original construction. The unfortunate project produced multiple legal actions by the condo association, Cypress Fairway Condominium Association, Inc. In one of these cases, the association sued various entities involved in the condo construction and apartment conversion work. The association contended that the work contained numerous defects, which cost $15 million to repair.

Most of the construction entities settled with the association. However, one business, Da Pau Enterprises, Inc., did not. Da Pau asked the trial court to throw out the case against it, or else award it summary judgment. Da Pau argued that the association’s claim was outside the statute of repose and, as a result, that the association was barred from pursuing the case.

The trial court sided with Da Pau. The association appealed, and the appeals court reversed the lower court’s ruling. Florida Statutes Section 95.11(3)(c) says that lawsuits based upon “design, planning, or construction of an improvement to real property” must be initiated with 10 years of the latest of:  the date of actual possession, the date of the issuance of a certificate of occupancy, the date of abandonment of construction (in cases when the project is never completed), or the date of completion of the contract.

In Da Pau’s case, the latest event was the completion of the contract. Da Pau had successfully persuaded the trial court that the contract was completed on the date of the “Final Application for Payment,” which was Jan. 31, 2001. The association, on appeal, argued that the 10-year period did not start running until it actually made the final payment, which happened a few days later, on Feb. 2. These two days made all the difference in this case because the association launched its suit on Feb. 2, 2011.

The appeals court agreed with the association. The language of Section 95.11 was clear that the statutory period began running when the contract was completed and that a contract was complete when both sides met their obligations, not just when the contractor performed. “Had the legislature intended the statute to run from the time the contractor completed performance, it could have simply so stated.” This meant that the contract was not complete until the association made its final payment required by the agreement. Since that happened on Feb. 2, 2001, the statute of repose only barred actions undertaken after Feb. 2, 2011. The association filed on Feb. 2, so the lawsuit was timely.

Many things have to happen in order to be able to sue someone who has caused your business harm. This includes amassing evidence, identifying the parties who committed misconduct, and managing limitations period deadlines. Experienced legal counsel can help you in all of these regards. The skilled Florida construction litigation attorneys at Stok Kon + Braverman can help you address each of the needs of your case. Our hardworking attorneys can make sure that your case has everything it needs for success, including meeting all statutory limitations periods.

Contact us online or by calling (954) 237-1777 to schedule your consultation.

More blog posts:

Contract Addendum Establishes Agreement as Unambiguous, Defeats Need for Extrinsic Evidence in Real Estate Dispute, Florida Business Lawyers Blog, Dec. 5, 2014

Landlord Free to Refuse Lease Extension for Any Reason, Florida Appeals Court Says, Florida Business Lawyers Blog, Nov. 5, 2014

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