Florida Appellate Court Revives $15 Million Construction Claim2020-04-23T00:25:16+00:00
Florida Appellate Court Revives $15 Million Construction Claim

Can three days make a difference when filing a construction defect lawsuit? Absolutely! In Cypress Fairway Condominium v. Bergeron Construction Co. Inc., three days was the difference between the claim being time barred and timely filed.

Under Section 95.11(3)(c), Florida Statutes, an action founded on the design, planning, construction, or an improvement to real property must be commenced within ten years after the latest of four specific events: 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.

In Cypress Fairway Condominium, the lawsuit was filed against the defendant on February 2, 2011. The defendant moved for a dismissal arguing that “completion … of the contract” meant when a final application for payment was made, which was January 31, 2001, and the Association’s claim was time barred. On the other hand, the Association took the position that “completion … of the contract” meant when final payment was made, which was February 2, 2001, and the claim was timely.

The trial court, relying on the statute’s preamble, dismissed the complaint finding it was “convinced that the Legislature intended that the date of completion of the contract had to do with the date of completion of the construction that would have been done under the contract, not the date of final payment.”

The Fifth District reversed, finding that the trial court “erred in using the preamble to discern intent here because section 95.11(3)(c) is clear and unambiguous.” The Fifth District explained:

Completion of the contract means completion of performance by both sides of the contract, not merely performance by the contractor. Had the legislature intended the statute to run from the time the contractor completed performance, it could have simply so stated. It is not our function to alter plain and unambiguous language under the guise of interpreting a statute.

This ruling is advantageous for Florida claimants because it allows for an “extension” of the statute of repose beyond ten years from the issuance of a certificate of occupancy, which is what most people previously understood to be the cutoff date.


Ball Janik LLP was founded in 1982 with six lawyers and a four-person support staff in Portland, Oregon. Since our firm’s inception, we have expanded our capabilities, our professionals, and geographic footprint. What started as a firm focused in real property and land use (known then as Ball Janik & Novack), has grown to include the insights of a team of 30-plus attorneys, with a combined six centuries of experience, and capabilities including Real Estate and Land Use, Construction Defect, Commercial Litigation, Insurance Recovery, Construction and Design, Employment, Finance and Corporate, Public Agencies and Schools, and Community Associations. With offices in Florida and Oregon, our regional growth has earned us a national reputation for upholding the rights of our clients.

Ball Janik LLP has been recognized by Chambers USA, U.S. News & World Report and Best Lawyers®, The Best Lawyers in America©, and Corporate International. Ball Janik LLP’s success and integrity have repeatedly made it one of “Oregon’s Most Admired Professional Firms,” according to the Portland Business Journal’s survey results of CEOs throughout the region.

Kelly M. Corcoran
Orlando, Florida
No Blog Tiles found.