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Construction Law Authority / Cases  / New Case: Cypress Fairway v. Bergeron Construction (Statute of Repose)

New Case: Cypress Fairway v. Bergeron Construction (Statute of Repose)

Interesting opinion issued last week by the Florida’s Fifth District Court of Appeal on the statute of repose.  The opinion can be found here.  It is not yet final.

The Cypress Fairway Condominium was a conversion condominium.  The suit was brought by the Association “individually” and also as assignee of claims by the general contractor.  Suit was filed against parties involved in the original construction and also the conversion.

Suit was filed on February 2, 2011. There is no reference to when the certificate of occupancy was issued.  Rather, the last non-settling defendant argued that the statute of repose period began when application for final payment was made on January 31, 2001, which was they argued was the completion date of construction.  The Association argued that the repose period did not begin until February 2, 2001, when final payment was actually made.  The trial court granted summary judgment to the defendant on this basis.

The 5th DCA reversed based on the fact that final payment had not been made until February 2, 2001.  The 5th DCA reasoned that under the plain meaning of Section 95.11(3)(c), the last act for completion of the contract was the final payment not when the application for payment was made.  There was no discussion of the certificate of occupancy or whether the Association’s legal standing came from the assignation of the general contractor or arose under Rule 1.221.

The opinion may be modified before becoming final.  However, as it stands, the opinion makes less clear when the statute of repose actually begins to run for condominium defect cases and potentially creates significant factual issues precluding summary judgment on the statute of repose.

Sanjay Kurian

Sanjay Kurian is a Board Certified Construction Lawyer and is a member of the Firm’s Construction Law and Litigation group. He is AV Rated Preeminent by Martindale-Hubbell. He has also been selected again as a Super Lawyer in 2018, which is a recognition by his peers of the top 5% of lawyers in Florida.

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