         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


TIMOTHY BUSCH,

             Appellant,

 v.                                                     Case No. 5D16-1626

LENNAR HOMES, LLC,

             Appellee.

________________________________/

Opinion filed April 13, 2017

Appeal from the Circuit Court
for Lake County,
Mark J. Hill, Judge.

Matthew L. Wilson and Joshua E. Burnett of
Burnett Wilson Reeder, Tampa, for
Appellant.

Charles D. Harper, Christopher L. Griffin
and Adam R. Alaee of Foley & Lardner LLP,
Tampa, for Appellee.

PALMER, J.

      Timothy Busch (Homeowner) appeals the trial court’s order dismissing his

complaint with prejudice based on the expiration of the ten-year statute of repose

applicable to construction defect claims. See § 95.11(3)(c), Fla. Stat. (2015). Because

the complaint does not conclusively establish that the statute of repose had expired prior

to the filing of Homeowner's complaint, we reverse.
       When ruling on a motion to dismiss a complaint, the trial court must look no further

than the complaint and its attachments and must treat as true all of the complaint's well-

pleaded allegations. Morin v. Florida Power & Light Co., 963 So. 2d 258, 260 (Fla. 3d

DCA 2007). A trial court’s determination to dismiss a complaint, based on a matter of

law, is subject to de novo review. Saltponds Condo. Ass'n v. Walbridge Aldinger Co., 979

So. 2d 1240, 1241 (Fla. 3d DCA 2008). Thus, when considering a trial court's dismissal

of a complaint on the basis of the statute of repose, the appellate court's focus is on

whether the factual allegations set forth in the complaint and its attachments establish

that the claims for relief therein are time barred. Ambrose v. Catholic Soc. Serv., Inc., 736

So. 2d 146, 149 (Fla. 5th DCA 1999). Of importance, a plaintiff is not required to anticipate

affirmative defenses, including the statute of repose, with specific allegations in the

complaint in order to survive a dismissal motion. Williams v. City of Jacksonville, 191 So.

3d 925, 928 (Fla. 1st DCA 2016).

       Pursuant to the Purchase and Sale Agreement (the contract) between Homeowner

and Lennar Homes (Builder), Homeowner agreed to pay Builder for the construction of a

home. Nearly ten years after closing on the home, Homeowner served a Chapter 558

notice on Builder concerning several alleged construction defects.1 A short time later, but

more than ten years after closing, Homeowner filed a complaint alleging multiple

construction defects attributable to Builder. Relying on section 95.11(3)(c), Florida's

statute of repose, Builder filed a motion to dismiss the complaint. This statute provides:

              95.11 Actions other than for recovery of real property
              shall be commenced as follows:


       1  Chapter 558, Florida's construction defect statute, requires a claimant to serve a
written notice of claim on the party believed to be responsible for the defect 60 days prior
to filing suit. See §§ 558.003; 558.004(1), Fla. Stat. (2015).


                                             2
             ....

             (3) Within four years.—

             ....

             (c) 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. 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) (emphasis added). In seeking dismissal, Builder argued that the parties'

contract was completed at closing and, thus, the statute of repose barred Homeowner's

action because the complaint was filed more than ten years after closing.

      After conducting a hearing, the trial court granted Builder's motion and dismissed

the complaint. Homeowner challenges this ruling, arguing that the trial court erred in

dismissing his complaint because it did not conclusively establish that the contract was

completed at closing. We agree.

      A contract is not complete until "both sides of the contract" have been performed.

Cypress Fairway Condo. v. Bergeron Const. Co., 164 So. 3d 706 (Fla. 5th DCA 2015).

Here, the contract, which was attached to the complaint, provided:

             10. Inspection Prior to Closing


                                           3
              10.1 Purchaser shall be given an opportunity to examine the
              Home with Seller’s representative prior to closing of title on a
              date and time scheduled by Seller. At that time, if any items
              are noted, Purchaser shall present to Seller an inspection
              statement signed by Purchaser, if any items noted are actually
              defective in workmanship or materials in Seller’s opinion in
              accordance with construction standards prevalent for a similar
              home in the county where the community is located, Seller will
              be obligated to correct those items at Seller’s cost. A second
              inspection of the home will be conducted prior to closing at
              which time the Purchaser will be given an opportunity to
              examine the home with Seller’s representative to
              acknowledge that items listed on the inspection statement
              prepared after the first inspection have been corrected. Any
              remaining items that Seller has agreed to correct will be
              corrected by Seller at Seller’s sole cost and expense prior to
              closing or at Seller’s option within a reasonable time after
              closing.

Because the contract expressly contemplated that closing could occur even if work

required by the contract remained incomplete, and the complaint did not allege that no

work was completed after closing, the allegations of the complaint do not conclusively

establish that the contract was completed upon closing. Accordingly, the trial court erred

in dismissing the complaint. See Allan & Conrad Inc. v. Univ. of Cent. Florida, 961 So. 2d

1083 (Fla. 5th DCA 2007); Clearwater Hous. Auth. v. Future Capital Holding Corp., 126

So. 3d 410 (Fla. 2d DCA 2013).2



      2 Homeowner also argues that he commenced the action by serving a Chapter 558
notice and that the statute of repose was tolled until he filed suit, relying on the Florida
Supreme Court's decision in the medical malpractice case of Musculoskeletal Institute
Chartered v. Parham, 745 So. 2d 946 (Fla. 1999). We reject this argument because there
is an important distinction between the two statutory schemes. If a potential medical
malpractice litigant files suit prematurely, the case is subject to dismissal; however, if a
claimant asserting a construction defect files suit prematurely, the lawsuit is simply
stayed. See § 558.003. Notably, the decision in Parham was based in large part on the
concern that compliance with the medical malpractice presuit requirements could result
in a potential litigant’s cause of action being forever barred by the statute of repose,
constituting an "unconstitutional impediment to access to the courts." 745 So. 2d at 952.


                                             4
      REVERSED and REMANDED.



ORFINGER, J., and WEISS, K., Associate Judge, concur.




The stay provision thus ensures that section 558.004's requirements do not infringe upon
a claimant's right to access the courts.



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