Prior to the Fourth District Court of Appeal’s recent decision in Robert Gindel, et al. v. Centex Homes, et al., 43 Fla. L. Weekly D2112d (Fla. 4th DCA Sept. 12, 2018), Florida courts had not directly addressed the issue of whether the mandatory pre-suit notice for construction defects under Chapter 558 qualifies as an “action,” pursuant to the statute of repose in Chapter 95.
Gindel v. Centex is a construction defect case for damages arising from the alleged improper construction of townhomes. On March 31, 2004, the Homeowners closed on and took possession of the townhomes constructed by Centex and its subcontractors. On that date, the statute of repose, section 95.11(3)(c), Florida Statutes (2014), began to run as to any construction defect, the expiration of which was ten years later. After discovering the alleged defect, on February 6, 2014, the Homeowners provided the Chapter 558 requisite pre-suit notice of defect to Centex. At the conclusion of the mandatory pre-suit procedure, Centex declined to cure the alleged defect. The Homeowners filed suit on May 2, 2014.
The trial court determined that the Homeowners commenced the action upon filing suit, and therefore, the action originated after the expiration of the ten-year statute of repose period. The Homeowners argued that the action commenced upon filing the requisite pre-suit notice of Chapter 558, which was filed before the ten-year period lapsed. The trial court rejected the Homeowners’ argument and granted summary judgement for Centex, and the Homeowners appealed.
The Fourth District Court of Appeal reversed, finding that the Homeowners commenced an action before the expiration of the statute of repose when they provided the requisite pre-suit notice of defect to Centex, pursuant to section 558.004.
In reaching its conclusion, the Fourth DCA stated that the trial court conflated the separate and distinct definitions of the term “action” provided in Chapter 95 and Chapter 558. That court stated that it is evident in Chapter 558 that the term “action” does not include the mandatory pre-suit procedure set forth in the chapter. For example, section 558.004, states that a written notice of claim shall be served on the contractor before an action is brought. However, in Chapter 95, “action” is defined more broadly and without much context to limit the meaning of the term. The court reasoned that because Chapter 95 does not rely on Chapter 558 or reference it in the slightest degree, the interpretation of the term “action” in Chapter 95 is distinct from and without reliance on the term as it is defined and used in Chapter 558.
The Chapter 95 definition of “action” is broad in scope as it is simply defined as, “[a] civil action or proceeding.” The Fourth DCA finds that the mandatory pre-suit notice and procedure of Chapter 558 is a “proceeding” and is thus an “action.” The trial court’s interpretation had improperly ignored the full definition of Chapter 95, in effect rendering “or proceeding,” as “meaningless surplusage.”
In Raymond James Financial Services, Inc. v. Phillips, 126 So. 3d 186 (Fla. 2013), the Florida Supreme Court recognized that civil actions and proceedings are distinct concepts and therefore must be interpreted separately. The Supreme Court declined to infer that the “proceedings” provided for in the definition meant strictly “judicial proceedings,” reasoning that the legislature would have incorporated the term “judicial” before “proceeding” had it intended to limit its application. Instead, the Court relied upon the plain meaning of “proceeding” to make its determination. The Court cited to Merriam Webster’s Dictionary of law defining “proceeding” as “a particular step or series of steps in the enforcement, adjudication, or administration of rights, remedies, laws, or regulations.”
Therefore, the Fourth DCA concluded that Chapter 558 lays out a series of mandatory steps that must be complied with before judicial action is to be taken, and therefore, the pre-suit notice constitutes an “action” for purposes of the statute of repose.
If you have any questions, please do not hesitate to contact Ryan Charlson, Esq., at 954-343-3919 or ryan.charlson@csklegal.com.
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