Harrell v. Ryland Grp.

• Decision Date: 13 August 2019
• Docket Number: No. 1D18-3728,1D18-3728
• Citation: 277 So.3d 292
• Parties: James HARRELL, Appellant, v. The RYLAND GROUP, doing business as Ryland Homes, a foreign for-profit corporation, Appellee.
• Court: Florida District Court of Appeals

277 So.3d 292

James HARRELL, Appellant,

v.The RYLAND GROUP, doing business as Ryland Homes, a foreign for-profit corporation, Appellee.

No. 1D18-3728

District Court of Appeal of Florida, First District.

August 13, 2019

Christopher W. Hewett of Law Office of Nooney & Roberts, Jacksonville, for Appellant.

J. Logan Murphy, Marie A. Borland, and J. Rocco Cafaro of Hill, Ward & Henderson, P.A., Tampa, for Appellee.

Lewis, J.

Appellant, James Harrell, appeals the final summary judgment entered in favor of Appellee, The Ryland Group, Inc., d/b/a Ryland Homes, and raises two issues. Appellant argues that the trial court erred in ruling that the statute of repose of section 95.11(3)(c), Florida Statutes (2016), applies. In the alternative, he argues that Appellee failed to establish that the statute of repose had run. We affirm.

BACKGROUND

In June 2016, Appellant filed against Appellee an amended complaint for damages for injuries he allegedly sustained around June 6, 2012, when an attic ladder he was climbing at a residential home ("the home") for purposes of repairing a leak collapsed underneath him.¹ Appellant alleged that Appellee constructed and sold the home prior to June 6, 2012, and was negligent "by failing to ensure that the attic ladder was installed in a secure manner with the appropriate hardware" and "by failing to verify that the ladder was secure before selling the home." Appellee filed a motion to dismiss, arguing in part that Appellant's claim was barred by the ten-year statute of repose of section 95.11(3)(c), Florida Statutes. The trial court found that the statute is applicable because an attic ladder is an improvement to real property, but denied the motion upon further finding that it was not clear from the face of the complaint whether the suit was filed before the expiration of the statute of repose.

Appellee then filed a motion for summary judgment, in which it alleged and argued as follows. In July 2003, Appellee entered into an agreement with the original owners, pursuant to which it was to construct and sell the home to them. On or around April 30, 2004, the construction of the home was completed and a certificate of occupancy was issued. By that date, final performance had occurred and final payment had become due for all the contracted-for services related to the construction of the home. On or around May 7, 2004, Appellee executed a warranty deed conveying title to the home to the original owners, who took actual possession of the home. As found by the trial court, the installation of the attic ladder was an improvement to real property; thus, section 95.11(3)(c) applies. The issuance of the certificate of occupancy, the conveyance of the home to the original owners, and the recording of the warranty deed confirm that "all construction activities on the Home were complete, and paid for, and that the Original Owners took actual possession of the Home on [May 7, 2004]." As such, any claims relating to the home expired ten years later, on May 7, 2014, rendering Appellant's claim time barred.

Appellee filed several exhibits in support of its motion. A rider to the agreement between Appellee and the original owners reflects a contract date of July 29, 2003, and an estimated closing date of March and that the contract included optional "[p]ull down attic stairs" for $249. A certificate of occupancy was issued on April 30, 2004, stating that the home "has been completed to the best of our knowledge in compliance with all Building Code and Zoning Regulations applicable therein." A warranty deed reflects that Appellee conveyed the home to the original owners on May 7, 2004. Appellee also filed the affidavit of William Berryhill, the vice-president of the successor corporation by merger to Appellee, in which Berryhill attested in part as follows:

5. ... The issuance of the Certificate of Occupancy indicates that construction of the Home was completed as of April 30, 2004. I know this based on Ryland's standard building procedures and I can also attest to the fact that Ryland's standard building procedures regarding completion of construction and application for the Certificate of Occupancy are common to other production home builders.

6. To be even more specific, issuance of the Certificate of Occupancy on April 30, 2004 indicates that as of that date final performance of all of the contracted-for services provided by the professional engineer, registered architect, or licensed contractor with respect to the Home were complete. In other words, on April 30, 2004 all of the contract(s) ... were complete with respect to the Home.

....

8. Ryland's procedures and protocols would not have permitted the conveyance of the Home as signified by the Warranty Deed without final completion of the contract(s) ... with respect to the Home and final payment (i.e. closing) delivered to Ryland by the Original Owners.

9. The recording of the Warranty Deed on or about May 7, 2004 provides final confirmation that all construction activities on the Home were complete, and paid for, and that the Original Owners took actual possession of the Home on that date.

In his response, Appellant argued that section 95.11(3)(c) does not apply because "the act of fastening a pre-assembled attic ladder does not constitute design, planning or construction of an improvement to real property" and even if the statute were applicable, Appellee failed to establish that the alleged negligent act occurred more than ten years before this action was filed because it has not shown when the ladder was installed. At the motion hearing, Appellant's counsel argued that although the summary judgment evidence indicates that the contract had been completed, it "ignores the fact that sometimes builders have to come back out and do things that they forgot to do as part of that contract. And so, without knowing when this attic ladder was installed, I don't think [Appellee] can carry its burden of establishing when the construction was abandoned or completed."

The trial court entered final summary judgment for Appellee. This appeal followed.

ANALYSIS

The party moving for summary judgment must establish the absence of any genuine issue of material fact and its entitlement to judgment as a matter of law. Bradley v. Fort Walton Beach Med. Ctr., Inc. , 260 So. 3d 1178, 1180 (Fla. 1st DCA 2018). When the movant satisfies this initial burden, the burden shifts to the opposing party to demonstrate the existence of disputed issues of fact by presenting evidence of countervailing facts or justifiable inferences from the facts presented. Id. A mere assertion that an issue exists does not suffice; "general allegations and legal argument do not constitute evidence of disputed issues of material fact." Id. The trial court must draw every possible inference in favor of the nonmoving party and may grant the motion only if the facts are so crystallized that nothing remains but questions of law. Convergent Techs., Inc. v. Stone , 257 So. 3d 161, 166 (Fla. 1st DCA 2018). An order granting summary judgment is reviewed de novo. Id.

Likewise, an issue of statutory interpretation is reviewed de novo . Whitney Bank v. Grant , 223 So. 3d 476, 479 (Fla. 1st DCA 2017). The polestar of statutory interpretation is legislative intent, which is to be determined by first looking at the actual language used in the statute. Searcy, Denney, Scarola, Barnhart & Shipley v. State , 209 So. 3d 1181, 1189 (Fla. 2017). Where the Legislature did not define the words in the statute, the language is to be given its plain and ordinary meaning, which may be derived from a dictionary. Debaun v. State , 213 So. 3d 747, 751 (Fla. 2017). If the statutory language is clear and unambiguous, the court may not resort to the rules of statutory construction and the statute must be given its plain and obvious meaning, unless it would lead to an unreasonable result or a result clearly contrary to legislative intent. Searcy, Denney, Scarola, Barnhart & Shipley, 209 So. 3d at 1189 (explaining that the court must give effect to all parts of the statute and avoid readings that would render a part thereof meaningless, and the court may not construe a statute in a way that would extend, modify, or limit its express terms or its reasonable or obvious implications).

Section 95.11(3)(c), Florida Statutes (2016), provides in pertinent part as follows:

An action founded on the design, planning, or construction of an improvement to real property ... 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.^{[2 ]}

The legislative intent behind section 95.11(3)(c) was to protect engineers, architects, and contractors from stale claims. Snyder v. Wernecke , 813 So. 2d 213, 216 (Fla. 4th DCA 2002).

As such, the applicability of section 95.11(3)(c) turns on whether Appellant's action is founded on the "construction of an improvement to real property." We refer to the dictionary to ascertain the plain and ordinary meaning of the words "construction" and "improvement" because the Legislature did not define them. "Construction" is defined as "[t]he act of building by combining or arranging parts or elements; the thing so built." Construction , BLACK'S LAW DICTIONARY (11th ed. 2019). "Improvement" is defined as "[a]n addition to property, usu. real estate, whether permanent or not; esp., one that increases its value or utility or that enhances its appearance." Improvement , BLACK'S LAW DICTIONARY (11th ed. 2019).³ Cf. Hillsboro Island House Condo. Apartments, Inc. v. Town of Hillsboro Beach , 263 So. 2d 209, 213 (Fla. 1972) (finding that beach erosion projects were "capital improvements" for the purpose of the town charter...