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Florida Appellate Court Affirms Summary Judgment In Favor Of General Contractor Based On Statute Of Limitations Defense In Latent Defect Case

In The Cottages at Stoney Creek Condominium Association, Inc., et al. v. JDR Construction, LLC, et al., No. 1D20-956, 2021 WL 2209851 (Fla. Dist. Ct. App. June 1, 2021), the Florida First District Court of Appeal affirmed the trial court’s decision granting summary judgment in favor of a general contractor on a statute of limitations defense. The trial court granted summary judgment in favor of the general contractor based on its determination that the owner knew or should have known of the alleged defects more than four years before suit was commenced. The trial court’s order discussed whether a six-year-old report established that the condominium association knew or should have known of the defects at issue in the case.

The association produced three reports, two dated from October 2011 and one dated from December 2017, as evidence of the alleged defects in the construction of the condominiums. One 2011 report identified deficiencies with the windows, doors, roof, sealant application, and pool deck settlement, as well as unsealed penetrations in the exterior walls and stucco cracks.  The other 2011 report concerned repairs associated with the leaking roof.

In 2017, when the lawsuit commenced, the association hired an engineering firm to conduct an inspection to determine the extent of the construction defects. The engineering firm drafted a report of its preliminary observations. This 2017 report identified almost the exact same issues noted in the 2011 reports.

Because the 2011 and 2017 reports were virtually the same, the trial court held that the alleged defects were discovered or were readily discoverable by the association back in 2011. As a result, the association was barred from bringing its claims six years later.

In its reasoning, the trial court stated that cases concerning construction are subject to a four-year statute of limitations under Florida law. See Fla. Stat. §95.11(3)(c). Additionally, the Court noted that Florida courts have consistently held that “when there is an obvious manifestation of a defect, notice will be inferred at the time of manifestation regardless of whether the plaintiff has knowledge of the exact nature of the defect.” Performing Arts Ctr. Auth. v. Clark Constr. Grp., Inc., 789 So.2d 392, 394 (Fla. 4th DCA 2001); Kelly v. Sch. Bd. Of Seminole County, 435 So. 2d 393, 394 (Fla. 1983).

During oral argument, the Appellate Court echoed the trial court’s reasoning, adding that email correspondence between the Association’s Board of Directors further demonstrated they knew about the defects since 2011. The emails, dated between 2011 and 2012, discussed the stucco cracks. Based on this evidence, the Appellate Court affirmed that the association could not bring its claims six years after it initially discovered the defects in 2011.