         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                 NOT FINAL UNTIL TIME EXPIRES TO
                                                 FILE MOTION FOR REHEARING AND
                                                 DISPOSITION THEREOF IF FILED


LAWRENCE BROCK AND
LAURA BROCK,

              Appellants,

 v.                                                     Case No. 5D14-1472

GARNER WINDOW & DOOR
SALES, INC, ETC., ET AL.,

              Appellees.

________________________________/

Opinion filed March 4, 2016

Appeal from the Circuit Court
for Orange County,
Donald E. Grincewicz, Judge.

Robert P. Major, of Winderweedle, Haines,
Ward & Woodman, P.A., Orlando, for
Appellants.

Nick S. Patrick and Christopher T. Hill, of
Hill, Rugh, Keller & Main, P.L., Orlando, for
Appellee, Garner Window & Door Sales,
Inc., A Florida Corporation.

No appearance for other Appellees.

PER CURIAM.

       After their home sustained water intrusion damage, Appellants, Lawrence and

Laura Brock, sued the company that installed the windows on their home. The installer,

Garner Window & Door Sales, Inc. (“Appellee”), successfully raised a statute of limitations
defense. We agree with the trial court that the four-year statute of limitations related to

the construction of an improvement to property, rather than the general five-year statute

for actions founded on a written contract, controls. We also agree that Appellee was not

precluded from raising this defense by virtue of its purported lack of licensure.

Accordingly, we affirm.

       There is no dispute that the instant litigation was commenced more than four years,

but less than five years, after Appellants discovered the alleged, latent defect in the

window installation. Accordingly, our determination of which statute applies is one of law.

Section 95.11(3)(c), Florida Statutes, provides a four-year limitations period for all actions

“founded on the . . . construction of an improvement to real property.” It specifies that the

limitations period commences to run on the happening of the latter of four events:

              [T]he date of actual possession 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;
              except that, when the action involves a latent defect, the time
              runs from the time the defect is discovered or should have
              been discovered with the exercise of due diligence. In any
              event, the action must be commenced within 10 years after
              the date of actual possession 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.

§ 95.11(3)(c), Fla. Stat. (Emphasis added). Because it is a specific statute, it is well-

settled that it controls over section 95.11(2)(b), the general statute for written contracts.

Dubin v. Dow Corning Corp., 478 So. 2d 71, 73 (Fla. 2d DCA 1985).




                                              2
       Notwithstanding the settled state of the law on this topic, Appellants make a novel

argument here. Pointing to the emphasized language in section 95.11(3)(c), they assert

that Appellee cannot invoke the benefit of the shorter limitations period set forth in that

section because it is not a licensed contractor. We reject this argument for two reasons.1

First, the reference to “licensed contractor” is contained within the portion of the statute

that addresses when the statute commences to run, not the types of actions to which it

applies. The applicability of the statute turns on the nature of the contract, not the

particular triggering event that starts the computation period. To interpret the statute as

urged by Appellants would lead to an illogical result where the applicability of the statute

could turn on the nature of the event that triggers its commencement, rather than the

subject matter of the contract itself. Using Appellants’ proffered interpretation, in

circumstances where the triggering event is something other than completion of the

project, such as when the project is abandoned, the licensure of the contractor would be

immaterial, and the statute would apply nevertheless. We are duty-bound to avoid an

absurd, illogical or unreasonable construction of a statute. Wakulla Cty. v. Davis, 395 So.

2d 540, 543 (Fla. 1981).

       Secondly, even if we were to accept Appellants’ construction of the statute, the

“licensed contractor” language is not implicated at all. The event that triggered the

commencement of the running of the statute here was the discovery of the latent defect—

not the completion of the contract. Accordingly, even under the literal reading of the




       1
        Appellee concedes that it did not have a license. Appellee does not concede that
a license was required. Given our disposition on the other issues, we need not address
whether licensure was required here.


                                             3
statute urged by Appellants, the licensure of the contractor is immaterial. Accordingly, we

conclude that section 95.11(3)(c) applies here.

       Reaching the foregoing conclusion does not end our analysis. Appellants argue

in the alternative that Appellee may not assert the limitations defense, pursuant to section

489.128, Florida Statutes, because Appellee was not properly licensed to perform the

work. In support of this argument, Appellants rely on Earth Trades, Inc. v. T&G Corp.,

108 So. 3d 580 (Fla. 2013).       Again, we disagree.     Section 489.128 precludes an

unlicensed contractor from enforcing a contract. It does not preclude an unlicensed

contractor from defending against an action to enforce a contract by the owner. Earth

Trades, Inc., addressed the question of whether an unlicensed contractor could enforce

a contract, notwithstanding the statute, by asserting that the owner was in pari delicto

because it was aware of the unlicensed status of the contractor when it entered into the

contract. Here, Appellee is not attempting to enforce the contract. Nothing in section

489.128 or Earth Trades, Inc., precludes a defendant in this circumstance from asserting

statutory defenses such as the statute of limitations.

       We reject Appellants’ other arguments without discussion.

       AFFIRMED.


ORFINGER and TORPY, JJ., concur.
BERGER, J., dissents with opinion.




                                             4
BERGER, J., dissenting.                                                 CASE NO. 14-1472


       I disagree with the majority view that section 95.11(3)(c), Florida Statutes, bars

recovery in this case. In my view, the clear and unambiguous language of section

95.11(3)(c) precludes an unlicensed contractor from invoking the benefit of the limitations

period set forth in that section. Accordingly, I dissent.

       Section 95.11(3)(c) provides a four year statute of limitations period for:

              An action founded on the design, planning, or construction of
              an improvement to real property, with the time running from
              the date of actual possession 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;
              except that, when the action involves a latent defect, the time
              runs from the time the defect is discovered or should have
              been discovered with the exercise of due diligence.

§ 95.11(3)(c), Fla. Stat. (emphasis added). The statute further provides:

              In any event, the action must be commenced within 10 years
              after the date of actual possession 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.

Id. (emphasis added).

       When interpreting a statute, courts must begin with the "actual language used in

the statute." Mendenhall v. State, 48 So. 3d 740, 747 (Fla. 2010) (quoting Heart of

Adoptions, Inc. v. J.A., 963 So. 2d 189, 198 (Fla. 2007) (citations and internal quotations

omitted). "This is because legislative intent is determined primarily from the statute’s

text." Id. at 748 (citations omitted). As the Florida Supreme Court has explained:



                                              5
             [W]hen the language of the statute is clear and unambiguous
             and conveys a clear and definite meaning . . . the statute must
             be given its plain and obvious meaning. Further, we are
             without power to construe an unambiguous statute in a way
             which would extend, modify, or limit, its express terms or its
             reasonable and obvious implications. To do so would be an
             abrogation of legislative power. A related principle is that
             when a court interprets a statute, it must give full effect to all
             statutory provisions. Courts should avoid readings that would
             render part of a statute meaningless.

Id. (quoting Velez v. Miami-Dade Cty. Police Dep’t, 934 So. 2d 1162, 1164-65 (Fla.

2006)).

      The language of section 95.11(3)(c) is clear and unambiguous and twice

references "licensed contractor[s]." In my view, the inclusion of the term "licensed"

indicates that the Legislature intended for section 95.11(3)(c) to apply only to actions

"founded on the design, planning, or construction of an improvement to real property" if

that design, planning or construction was performed by a licensed contractor. See

Moonlit Waters Apartments, Inc. v. Cauley, 666 So. 2d 898, 900 (Fla. 1996) (Under the

principle of statutory construction, expressio unius est exclusio alterius, the mention of

one thing implies the exclusion of another." (citing Bergh v. Stephens, 175 So. 2d 787

(Fla. 1st DCA 1965))). Therefore, because the Legislature limited section 95.11(3)(c) to

licensed contractors, construction performed by unlicensed contractors would be

excluded from the four-year limitations period.

      Here, the Brocks purchased windows from Garner and entered into a contract with

Garner to install the windows in their home. Garner then hired Dixon to do the actual

work. Because Garner was, by another, altering or improving real estate, the trial court

correctly concluded Garner qualified as a contractor.        See § 489.105(3), Fla. Stat.

However, the trial court’s reliance on Suntrust Banks of Florida, Inc. v. Don Wood, Inc.,



                                             6
693 So. 2d 99 (Fla. 5th DCA 1997), to conclude, based on the statute’s preamble, that

Garner was entitled to the protection provided by the limitations period set forth in section

95.11(3)(c) was wrong. See Cypress Fairway Condo. v. Bergeron Constr. Co., 164 So.

3d 706, 708 (Fla. 5th DCA 2015) (concluding trial court erred in using preamble to discern

legislative intent where section 95.11(3)(c) is clear and unambiguous) (citing Price v.

Forrest, 173 U.S. 410 (1899)). Because a license was required to perform the work, see

Dep't of Bus. & Prof'l Reg. v. Moyer, 2011 WL 6394878, Case No. 2009-044455 (DOAH

Oct. 12, 2011) (finding that respondent, who contracted with property owner in 2008 to

install windows to residence, acted as general contractor without required license), and

neither Garner nor Dixon were licensed, the four-year limitations period does not apply to

this case.

       In my view, section 95.11(3)(c) only applies to actions involving licensed

contractors.   To hold otherwise would render the statute’s reference to “licensed

contractor[s]” meaningless. Accordingly, I conclude the lower court erred in granting

summary judgment in favor of Garner based on section 95.11(3)(c).2




       2
         Section 95.11(2)(b) controls the outcome of this case. However, because Garner
did not timely file a motion for summary judgment based on this section, the trial court did
not consider whether the action was time barred by the five year limitations period
provided by it. I write only to address my disagreement with the Brocks’ argument that
Earth Trades, Inc. v. T&G Corp., 108 So. 3d 580 (Fla. 2013), precludes Garner from
raising section 95.11(2)(b) as a defense to the action. I agree with the majority that
nothing in section 489.128, Florida Statutes, or Earth Trades, Inc., would preclude an
unlicensed contractor from asserting a statute of limitations defense.


                                             7
