       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

ROBERT GINDEL, KEVIN HUMPHREY, XIOADAN SONG, WEIJING LI,
   PATRICIA JACOBS, CRAIG HANDWRECKER, JOHN WOODS,
MICHELLE CHARBONNEAU, ANNIE BROUSSEAU, CLAUDE RACINE,
 ROLAND SKERGET, ANNE SMART, ANTHONY D’ACUNTO, GREGG
  LUTZ, ERIC NEMETH, JUDITH GRASSO, LORI BRYAN, BRIAN
             STREICHER, AND GRACE MACKEY,
                       Appellants,

                                     v.

  CENTEX HOMES, CENTEX REAL ESTATE CORPORATION, 2728
HOLDING CORPORATION, PULTE HOME CORPORATION, AND PULTE
                     CORPORATION,
                       Appellees.

                              No. 4D17-2149

                          [September 12, 2018]


  Appeal from the Circuit Court for the Fifteenth Judicial Circuit; Palm
Beach County, Edward L. Artau, Judge; L.T. Case No. 50-2014-CA-
005369.

  Scott C. Harris of Whitfield Bryson & Mason, LLP, Raleigh, NC, for
appellants.

   Luis E. Ordonez and Gabriel A. Alfonso of Quintairos, Prieto, Wood &
Boyer, P.A., Miami, John H. Dannecker, Derrick M. Valkenburg, and
Jennifer P. Sommerville of Shutts & Bowen, LLP, Orlando, and Jason B.
Gonzalez of Shutts & Bowen, LLP, Tallahassee, for appellees.

   FERNANDEZ, ASSOCIATE JUDGE.

   Robert Gindel, et al., (collectively, “Homeowners”) appeal the Final
Judgment entered by the trial court granting summary judgment in favor
of Centex Homes and its subcontractor, Reliable Roofing and Gutters, Inc.,
(collectively, “Centex”). Upon consideration of the statute of repose for
actions founded upon the improvement of real property, we find that
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, Florida Statutes (2014). Accordingly, we
reverse the trial court’s order and remand for further proceedings
consistent with this opinion.

                             I.     BACKGROUND

   The underlying case is a construction defect case for damages arising
from allegedly improperly constructed townhomes. On March 31, 2004,
Homeowners closed on and took possession of their townhomes
constructed by Centex. From this 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. The Homeowners
discovered the alleged construction defect and, on February 6, 2014,
provided the requisite pre-suit notice of defect to Centex, pursuant to
Chapter 558. At the completion of the mandatory pre-suit procedure,
Centex notified Homeowners that it would not cure the alleged defect. On
May 2, 2014, Homeowners filed suit.

    The trial court found that Homeowners commenced an action upon
filing suit and, therefore, concluded that the action originated after the
expiration of the ten-year period of the statute of repose. In response,
Homeowners argued that the action commenced upon filing the requisite
pre-suit notice of Chapter 558, which was in fact filed before the 10 year
period lapsed. The trial court rejected Homeowners’ argument and granted
summary judgment in favor of Centex. Homeowners appealed.

                       II.        RELEVANT STATUTES

   The outcome of this appeal hinges on whether the pre-suit notice
required by Chapter 558 qualifies as “an action,” as the term is defined in
the statute of repose, sections 95.011 and 95.11(3)(c).

   Chapter 95 - Statute of Repose

  The applicable language limiting actions founded              upon    the
improvement of real property is provided as follows:

      95.011 A civil action or proceeding, called “action” in this
      chapter, [. . .] shall be barred unless begun within the time
      prescribed in this chapter [. . .].

      95.11(3)(c) An action founded on the design, planning, or
      construction of an improvement to real property [. . .] must be
      commenced within 10 years after the date of actual possession

                                      2
      by the owner, the date of the issuance of a certificate of
      occupancy, the date of abandonment of construction if not
      completed, or the date of completion or termination of the
      contract between the professional engineer, registered
      architect, or licensed contractor and his or her employer,
      whichever date is latest.

§§ 95.011, 95.11(3)(c), Fla. Stat. (2014) (emphasis added).

Chapter 558 - Pre-suit Notice Requirement

    Chapter 558 required Homeowners to provide pre-suit notice of defect
to Centex to allow the contractor an opportunity to cure, as an alternative
to litigation. The relevant portion of the statute reads:

      558.002(1) “Action” means any civil action or arbitration
      proceeding for damages or indemnity asserting a claim for
      damage to or loss of real or personal property caused by an
      alleged construction defect, but does not include any
      administrative action or any civil action or arbitration
      proceeding asserting a claim for alleged personal injuries
      arising out of an alleged construction defect.

      558.003 A claimant may not file an action subject to this
      chapter without first complying with the requirements of this
      chapter. 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.

      558.004(1)(a) In actions brought alleging a construction
      defect, the claimant shall, at least 60 days before filing any
      action, or at least 120 days before filing an action involving an
      association representing more than 20 parcels, serve written
      notice of claim on the contractor, subcontractor, supplier, or
      design professional, as applicable, which notice shall refer to
      this chapter.

§§ 558.002(1), 558.003, 558.004(1)(a), Fla. Stat. (2014) (emphasis
added).



                                      3
                               III.   ANALYSIS

    Throughout the order on appeal, the trial court conflated the separate
and distinct definitions of the term “action” provided in Chapter 95 and
Chapter 558. In Chapter 558, given the definition and the context in which
the term is used, it is evident that the term “action” indeed does not include
the mandatory pre-suit procedure set forth in the chapter. This is
especially apparent when, in section 558.004, the chapter instructs 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. Chapter 95 is a
statute of repose specific to construction claims but does not appear to
rely on Chapter 558 or reference it in any way. Therefore, this Court
concludes that 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.

   Focusing on the Chapter 95 term, Homeowners argue that the
definition of “action” is broad in scope as it is simply defined as, “A civil
action or proceeding.” Homeowners focus on the “proceeding” portion of
the definition and contend that the mandatory pre-suit notice and
procedure set forth in Chapter 558 is a “proceeding” and is thus an
“action.” Homeowners’ reasoning is logical and practical. The trial court
interpreted “action” exclusively as a “civil action,” that is commenced solely
by filing a complaint. The trial court’s interpretation ignores the full
definition of Chapter 95, rendering the rest of the definition, “or
proceeding,” as meaningless surplusage.

   Homeowners cite to Raymond James Financial Services, Inc. v. Phillips,
126 So. 3d 186 (Fla. 2013), for the proposition that the Florida Supreme
Court has already recognized that civil actions and proceedings are
distinct concepts and therefore must be interpreted separately. The trial
court had found, and the Second District agreed, that the definition “civil
action or proceeding,” pursuant to section 95.011, only applies to judicial
actions and does not include arbitration proceedings. Raymond James
Fin. Servs., Inc. v. Phillips, 110 So. 3d 908, 912 (Fla. 2d DCA 2011),
decision quashed, 126 So. 3d 186 (Fla. 2013). Upon certification to the
Florida Supreme Court, the Supreme Court found that if the legislature
wanted to limit proceedings to judicial proceedings, it would have added
“judicial” before “proceeding” in the definition. Raymond, 126 So. 3d at
191. For the plain meaning of the term, the Supreme Court cited to
dictionary definitions, including Merriam-Webster’s Dictionary of Law
defining “proceeding” as “a particular step or series of steps in the


                                      4
enforcement, adjudication, or administration of rights, remedies, laws, or
regulations.” 1 Id. at 191 n. 4. Homeowners claim in their brief,

        If Chapter 558 did not have mandatory procedures that must
        be followed in order to recover damages for construction
        defects, then the Homeowners would have filed the class
        action complaint on February 6, 2014. [. . .] By impacting the
        entire process of a construction defect claim, Chapter 558
        imposes mandatory steps that are on a continuum of a larger
        proceeding.

We agree with Homeowners 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.

   Up until this decision, Florida courts had not directly addressed the
issue of whether the mandatory pre-suit notice of Chapter 558 qualifies as
an “action,” pursuant to Chapter 95. However, in Musculoskeletal Institute
Chartered v. Parham, 745 So. 2d 946 (Fla. 1999), the Florida Supreme
Court held that, in the context of medical malpractice, compliance with
the statutory pre-suit notice and investigation requirements of sections
766.104(1) and 766.106(4), Florida Statutes (1989), constituted
commencement of an “action” for purposes of the statute of repose. The


1
    The Supreme Court also referred to Black’s Law Dictionary for guidance:

        Black's Law Dictionary defines “civil action” as “[a]n action
        brought to enforce, redress, or protect a private or civil right;
        a noncriminal litigation.” Black's Law Dictionary 34 (9th ed.
        2009). It defines “proceeding” as “[a]ny procedural means for
        seeking redress from a tribunal or agency.” Id. at 1324. . . . As
        Black's Law Dictionary notes, a tribunal is ‘[a] court or other
        adjudicatory body.” Black's Law Dictionary 1646 (emphasis
        added).

Raymond, 126 So. 3d at 190-91. Though Black’s Law states that the
purpose of a proceeding is to seek redress from “a tribunal or agency,”
ultimately. Homeowners are striving to seek redress from the judicial
courts, if necessary, and in order to reach the courts, Homeowners must
first pass through the “procedural means” of compliance with the
mandatory pre-suite notification procedure of Chapter 558.


                                       5
Supreme Court found that “commencing an action in the circuit court is
inextricably linked to […] [the] provisions of chapter 766.” Id. at 951. And,
“[I]t would be an unconstitutional impediment to access to the courts if
compliance with the statutory requirements in chapter 766 resulted in a
potential claimant's suit being forever barred by the associated statute of
repose.” Id. at 952. We find the same to be true in the construction
context.

    In the order on appeal, the trial court extensively cited to a singular
footnote in Busch v. Lennar Homes, LLC, 219 So. 3d 93 (Fla. 5th DCA
2017), for support as to why Florida courts cannot apply Parham to a
construction case. In this singular footnote, the Busch court stated that
in the construction context, there is no infringement upon a construction
defect claimant’s right to access the courts as is present in the medical
malpractice context. Id. at 96 n. 2. This assertion is based on the stay
provision provided in Chapter 558 that allows a party, who has already
filed suit before complying with the pre-suit requirement, to stay the suit
until compliance with the statute, while the pre-suit notice requirement of
the medical malpractice chapter does not include a stay provision. Id.

   Aside from this footnote being dicta, as Busch was decided on the
insufficiency of the complaint and not on the issue at hand, the trial court
is using the stay provision as a sword against the Homeowners. In the
order on appeal, the trial court argues that Homeowners should have
availed themselves of the stay provision that would have allowed the
Homeowners to file suit for the purpose of commencing an action before
the expiration of the statute of repose. Chapter 558 makes clear that the
pre-suit notice requirement is a mandatory procedure that must be
complied with before filing suit. Homeowners should not be penalized for
rightly complying with the mandates of the statute.

   Though Homeowners could have taken advantage of the Chapter 558
stay provision, this provision has no bearing on whether an action was
commenced before the statute of repose period lapsed. The statute of
repose clearly defines an action as a civil suit or a proceeding. Thus, on
the basis of Florida Supreme Court precedent set forth in Raymond and
Parham, this Court concludes that compliance with the pre-suit notice
requirement of Chapter 558 constitutes an “action” for purposes of the
statute of repose in the context of the improvement of real property.
Chapter 558 was not intended as a stalling device in order to bar claims.




                                     6
                                IV.   CONCLUSION

   Therefore, because the Homeowners commenced an action by providing
the requisite pre-suit notice to Centex within the ten-year statute of repose
period, we reverse the Final Judgment entered by the trial court granting
summary judgment in favor of Centex and remand for further proceedings
consistent with this opinion.

Reversed and remanded.

SUAREZ and SCALES, Associate Judges, concur.

                            *          *       *

   Not final until disposition of timely filed motion for rehearing.




                                       7
