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.