CHapTer 558 and CoMMenCeMenT oF an aCTion: gindel v. CenTeX
Construction law Section
Chairs: J. Derek Kantaskas – TMD Companies, LLC & Gregg E. Hutt – Trenam Law
The Fourth district
recently held that
homeowners commenced
an “action,” when
T
he Fourth District Court
of Appeal recently held
that homeowners in
a construction defect
class action lawsuit commenced
an “action,” for statute of repose
purposes, when they served a
pre-suit notice of construction
defect claim under Chapter 558,
Florida Statutes (2014), even though
they had not yet filed a lawsuit or
arbitration action. Robert Gindel,
et al. v. Centex Homes, et al., 2018
WL 4362058 (Fla. 4th DCA Sep.
12, 2018) (The opinion has not
been released for publication in
the permanent law reports. Until
it is released, it is subject to revision
or withdrawal.)
Centex built townhomes that
homeowners closed on and took
possession of on March 31, 2004.
On February 2, 2014, not quite
ten years later, the homeowners
provided Centex a pre-suit notice
of construction defect claim under
Chapter 558. In response, Centex
notified the homeowners, under
Chapter 558, that it would not
cure the alleged defects. The
homeowners then sued Centex on
May 2, 2014, more than ten years
after they closed on and took
possession of the townhomes.
The trial court found that the
homeowners had commenced an
“action” when they filed the lawsuit
against Centex. The action was
28
they served a pre-suit
notice of construction
defect claim.
therefore untimely because it
was commenced after the 10-year
statute of repose for actions
founded on the design, planning,
or construction of an improvement
to real property had expired.
See § 95.11(3)(c), Fla. Stat. (2014).
In ruling that the action was
untimely, the trial court rejected
the homeowners’ argument that
they had commenced the action
when they provided Centex the
pre-suit notice of construction defect
claim under Chapter 558, which
occurred before the expiration
of the 10-year statute of repose.
According to the homeowners,
they would have sued earlier if
Chapter 558 had not contained
mandatory pre-suit procedures.
The Fourth DCA noted that,
while section 558.002(1), defines
“action” as “any civil action or
arbitration proceeding,” section
95.011 more broadly defines an
“action” as “a civil action or
proceeding” without limiting
the meaning and without relying
on or referring to Chapter 558.
The Fourth DCA agreed with the
homeowners that Chapter 558 is
a mandatory “proceeding” and
thus an “action” for purposes of
the statute of repose. The Fourth
DCA acknowledged that the
homeowners could have filed a
lawsuit earlier and taken advantage
of the stay provision in section
558.003, but it opined that the
stay provision in Chapter 558
has no bearing on whether an
action was commenced before the
statute of repose period lapsed.
It concluded that the homeowners
had commenced the action when
they served Centex with the pre-suit
notice of construction defect claim
under Chapter 558, even though
they had not yet filed a lawsuit.
Motions for rehearing and for
certification are fully briefed and
pending disposition by the Fourth
DCA. Until
the issues raised
in Gindel are
finally resolved,
Gindel will have
implications
for all involved
in construction
disputes when
the statute
of repose is
at issue.
Authors:
Jaret J. Fuente
& Monica L.
Strady –
Carlton Fields
MAR - APR 2019
|
HCBA LAWYER