Cypress Fairway Condominium v. Bergeron Construction Co. Inc., 40 Fla. L. Weekly D 1097 (Fla. 5th DCA 2015)

Construction cases: statute of repose commences when the contract, not the construction, is completed

The appellant condominium complex filed suit against various defendants for construction defects. The appellee subcontractor moved to dismiss the appellant’s claims on the basis that they were filed outside the ten-year statute of repose. Pursuant to section 95.11(3)(c), Fla. Stat., an action founded on the design, planning or construction of real property must be commenced within ten years after the latest of four specific events. The issue before the court was the meaning of the fourth option—the date of “completion... of the contract.”

The appellee moved to dismiss the claim on the basis that the statute began to run on January 31, 2001, the date on which the final application for payment was made. The appellant argued that the contract was not completed and that the statute began on February 2, 2001, when final payment was made. The trial court granted the appellee’s motion to dismiss, finding that the legislature intended “completion of contract” under the statute to mean the date of completion of construction. On appeal, the court reversed the dismissal, finding that completion of the contract “means completion of performance by both sides of the contract, not merely performance by the contractor.”

Therefore, in order to protect and shorten the period of time a contractor’s work may be subject to litigation, contractors should require payment to be made within a specified time as “completion of construction” will not begin to run until then. While “time is money,” it is also additional exposure.

Case Law Alerts, 3rd Quarter, July 2015

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