LAKE COUNTY — The 5th District Court of Appeal in Florida has ruled on behalf of a Florida homeowner in a defection case that a trial court was wrong to dismiss the case. 

Homeowner Timothy Busch filed for an appeal with the court after the Circuit Court for Lake County tossed out his complaint against Lennar Homes LLC under a 10-year statute of repose for a defection claim. The appeals court reversed the trial court’s decision, saying that the actual complaint does not confirm that the statute of repose period was over before the homeowner filed the complaint. 

The appeals court also said that the duty of the trial court is to solely consider the actual complaint and its attachments. Therefore, the trial court’s argument that Busch violated the 10-year statute of repose was not valid. 

"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 int he complaint and its attachments establish that the claims for relief therein are time barred," the appeals court ruled.

The appeals court also said that it is not the plaintiff's responsibility to foresee certain defenses such as the statute of repose argument. 

Busch said that he would pay Lennar Homes for construction on the home, according to court documents. But about a decade after settling in the home, Busch filed a Chapter 558 notice against Lennar Homes, stating there were “several alleged construction defects.” Lennar Homes responded with a motion to dismiss the complaint because Busch’s statute of repose had ran out. 

According to Florida’s statute of repose "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.”

Although the trial court agreed that Busch had missed his state of repose, the appeals court sided with Busch and said the contract was not valid at the time of signing because both parties did not uphold their end of the deal. Under the contract, Busch could close on the home even if more work needed to be done. The complaint didn’t say that Lennar Homes stopped working on the house after the closing. Therefore, the appeals court ruled that the trial court was incorrect in dismissing Busch’s claims and overturned its ruling.

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Florida 5th District Court of Appeal
300 South Beach Street
Daytona Beach, FL - 32114

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