Busch v. Lennar Homes, LLC

• Decision Date: 13 April 2017
• Docket Number: Case No. 5D16–1626
• Citation: 219 So.3d 93
• Parties: Timothy BUSCH, Appellant, v. LENNAR HOMES, LLC, Appellee.
• Court: Florida District Court of Appeals

219 So.3d 93

Timothy BUSCH, Appellant,

v.LENNAR HOMES, LLC, Appellee.

Case No. 5D16–1626

District Court of Appeal of Florida, Fifth District.

Opinion filed April 13, 2017

Rehearing and Rehearing En Banc Denied May 30, 2017

Matthew L. Wilson and Joshua E. Burnett of Burnett Wilson Reeder, Tampa, for Appellant.

Charles D. Harper, Christopher L. Griffin and Adam R. Alaee of Foley & Lardner LLP, Tampa, for Appellee.

PALMER, J.

Timothy Busch (Homeowner) appeals the trial court's order dismissing his complaint with prejudice based on the expiration of the ten-year statute of repose applicable to construction defect claims. See § 95.11(3)(c), Fla. Stat. (2015). Because the complaint does not conclusively establish that the statute of repose had expired prior to the filing of Homeowner's complaint, we reverse.

When ruling on a motion to dismiss a complaint, the trial court must look no further than the complaint and its attachments and must treat as true all of the complaint's well-pleaded allegations. Morin v. Florida Power & Light Co. , 963 So.2d 258, 260 (Fla. 3d DCA 2007). A trial court's determination to dismiss a complaint, based on a matter of law, is subject to de novo review. Saltponds Condo. Ass'n v. Walbridge Aldinger Co. , 979 So.2d 1240, 1241 (Fla. 3d DCA 2008). Thus, when considering a trial court's dismissal of a complaint on the basis of the statute of repose, the appellate court's focus is on whether the factual allegations set forth in the complaint and its attachments establish that the claims for relief therein are time barred. Ambrose v. Catholic Soc. Serv., Inc. , 736 So.2d 146, 149 (Fla. 5th DCA 1999). Of importance, a plaintiff is not required to anticipate affirmative defenses, including the statute of repose, with specific allegations in the complaint in order to survive a dismissal motion. Williams v. City of Jacksonville , 191 So.3d 925, 928 (Fla. 1st DCA 2016).

Pursuant to the Purchase and Sale Agreement (the contract) between Homeowner and Lennar Homes (Builder), Homeowner agreed to pay Builder for the construction of a home. Nearly ten years after closing on the home, Homeowner served a Chapter 558 notice on Builder concerning several alleged construction defects.¹ A short time later, but more than ten years after closing, Homeowner filed a complaint alleging multiple construction defects attributable to Builder. Relying on section 95.11(3)(c), Florida's statute of repose, Builder filed a motion to dismiss the complaint. This statute provides:

95.11 Actions other than for recovery of real property shall be commenced as follows :

....

(3) Within four years.—

....

(c) An action founded on the design, planning, or construction of an improvement to real property, with the time running from the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest; except that, when the action involves a latent defect, the time runs from the time the defect is discovered or should have been discovered with the exercise of due diligence. In any event, the action must be commenced within 10 years after the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest.

§ 95.11(3)(c) (emphasis added). In seeking dismissal, Builder argued that the parties' contract was completed at closing and, thus, the statute of repose barred Homeowner's action because the complaint was filed more than ten years after closing.

After conducting a hearing, the trial court granted Builder's motion and dismissed the complaint. Homeowner challenges this ruling, arguing that the trial court erred in dismissing his complaint because it did not conclusively establish that the contract was completed at closing. We agree.

A contract is not complete until "both sides of the contract" have been performed. Cypress Fairway Condo. v. Bergeron Const. Co. , 164 So.3d 706 (Fla. 5th DCA 2015). Here, the contract, which was attached to the complaint, provided:

10. Inspection Prior to Closing

10.1 Purchaser shall be given an opportunity to examine the Home with Seller's representative prior to closing of title on a date and time scheduled by Seller. At that time, if any items are noted, Purchaser shall present to Seller an inspection statement

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