In Moss & Assocs., LLC v. Peterson, 406 So. 3d 344, 346–50 (Fla. Dist. Ct. App. 2025), the Appellate Court for Third District affirmed Florida’s requirement for a pre-suit notice of construction defect, quashing the trial court’s denial of the defendant’s Motion to Stay and, in essence, restarting the pre-suit process.

Daystar Peterson owned a condominium unit as part of the Brickell Heights East Condominium Association.  In February 2023, Peterson filed a Complaint claiming his property was water damaged and that the Association contracted with Moss & Associates to “complete renovations and/or repairs.”  Peterson contended that Moss “negligently conducted repairs and/or construction to the roof and surrounding areas” and failed to “properly remedy and/or repair the damage caused by [Moss] at the subject property.”

Moss quickly responded to the Complaint by filing a Motion to Stay the litigation on grounds that Peterson failed to serve a notice of construction defect under Florida Statute §558.  Moss argued that from the point of service of the §558 notice, it had 60 days to address the defect (120 days if the claimant is an association representing more than 20 parcels) before the Complaint can be filed.

Moss outlined in its motion that Peterson was a “claimant” under §558.002(3) and the action involved a “construction defect” as defined in §558.002(5).  Moss argued that Peterson was required to comply with §558.004 before filing suit.

• 558 requires a 60-day pre-suit “written notice of claim on the contractor, subcontractor, supplier, or design professional, as applicable” and “the notice of claim identify the location of each alleged construction defect sufficiently to enable the responding parties to locate the alleged defect without undue burden.” §558.003 provides: “If a claimant files an action alleging a construction defect without first complying with the requirements of this chapter, on timely motion by a party to the action the court shall stay the action, without prejudice, and the action may not proceed until the claimant has complied with such requirements.

Peterson argued he could not provide notice because the Association had contracted with Moss, and he was not privy to what Moss had been hired to do.  The trial court denied Moss’s Motion to Stay as premature, claiming “maybe later [Moss] can argue that it is a construction defect case.”  Moss filed a writ of certiorari to the Third District Court of Appeals.

The Appellate Court first confirmed that a writ of certiorari was proper when a Motion to Stay an action was denied.  The Court identified two requirements for a writ: the petitioner “must establish ‘(1) a material injury in the proceedings that cannot be corrected on appeal (sometimes referred to as irreparable harm); and (2) a departure from the essential requirements of the law.’”  The Court reasoned that just as ignoring pre-suit notice requirements established in Florida Statutes for a medical malpractice case cannot be remedied post judgement, denying a Motion to Stay for a construction defect has the same effect.  The purpose of the pre-suit notice was to allow the parties to resolve the issues “through a negotiated settlement or voluntary repairs without ever filing a lawsuit.”

The Court concluded that Peterson was, in fact, a Claimant and that the Complaint clearly laid out a claim for construction defect. The ruling is significant because it forces a plaintiff to work with the defendant contractor, subcontractor, or designer to resolve the issues before a costly litigation process can commence, potentially saving time and resources for all concerned.