Gindel v. Centex Homes, No. 4D17-2149, 2018 Fla. App. LEXIS 13019 (4th DCA Sep. 12, 2018).

The Fourth District Court of Appeal in Florida recently struck a blow to the state’s Statute of Repose in construction defect cases. In Gindel v. Centex Homes, 2018 Fla. App. LEXIS 13019 (Fla. 4^th DCA 2018), the appellate court reversed the trial court’s grant of summary judgment when it held that the homeowners commenced an action before the expiration of the statue of repose by providing pre-suit notice, in accordance with Chapter 558 of the Florida Statutes. Gindel 2018 Fla. App. LEXIS at 1-2.

The underlying case involved alleged construction defects of townhomes constructed by Centex Homes and its subcontractor, Reliable Roofing and Gutters (collectively, “Centex”). On March 31, 2004, the homeowners took possession of their townhome. On February 6, 2014, in accordance with § 558.004 (1)(a), Fla. Stat. (2014), the homeowners provided pre-suit notice of construction defects to Centex. When the Chapter 558 process was completed, Centex indicated it would not cure the alleged defects. So, the homeowners filed suit on May 2, 2014. Centex moved for summary judgment arguing the suit was filed more than ten (10) years after the homeowners took possession of the home. The trial court granted the motion and the appeal followed. Gindel at 2.

The issue before the Court was whether the mandatory pre-suit notice required by § 558.004, Florida Statute, constitutes an “action,” under §§ 95.011 and 95.11 (3)(c), Fla. Stat. (2014). Id. at 3. The Appellate Court held it did.

In arriving at that decision, the Court analyzed the definition of “action” within the meaning of the statute of repose and the Chapter 558 statue. The Court indicated that Chapter 95 does not rely upon or reference the definition of “action” in Chapter 558. Moreover, the Court accepted the homeowner’s interpretation that an “action” has a broader meaning as the applicability of Chapter 95, Florida Statutes, references “a civil action or proceeding” and that Chapter 558 is a mandatory proceeding. Gindel at 5-6.

Specifically, the Court held “we agree with the homeowners that Chapter 558 lays out a series of mandatory steps that must be complied with before judicial action is to be taken, and therefore, the pre-suit notice constitutes an ‘action’ for purposes of the statute of repose.” Id. at 7. The Court analogized the Chapter 558 process with the mandatory, pre-suit requirements to filing a medical malpractice action. The Court did not want to penalize the homeowners for complying with the statute and stated, “homeowners should not be penalized for rightly complying with the mandates of the statute.” Id. at 9.

This decision is a blow to Florida contractors as it now opens them up to potential suit after the expiration of the ten (10) year repose period, as seen here. The Court’s reasoning will certainly apply to potential statute of limitations defenses, adding further uncertainty to a contractor’s liability under Florida law for alleged construction defects.

If you have any questions about this case or would like to refer a construction matter, please contact our construction attorneys.