United States District Court, M.D. Florida
SHAUN PARKER GAZZARA, ANA PAULA GAZZARA, HARRY JAMES WHITMAN and MARCIA FAYE WHITMAN, Plaintiffs,
PULTE HOME CORPORATION, Defendant.
GREGORY A. PRESNELL UNITED STATES DISTRICT JUDGE
Matter comes before the Court on the Defendant's Motion
for Summary Judgment (Doc. 224) and the Plaintiffs'
Response (Doc. 231).
Plaintiffs filed this case on April 18, 2016. In their first
amended complaint (Doc. 11), which was filed eleven days
later, the Plaintiffs asserted claims for negligence,
intentional construction of defective siding, and violations
of a statute-Florida Statute § 553.84-which provides a
cause of action for anyone damaged due to violations of the
Florida Building Code. On September 8, 2016, the Court
granted Pulte's motion to dismiss that pleading. Doc. 97.
Second Amended Complaint (Doc. 107) was filed on September
23, 2016. In it, the Plaintiffs purported to raise two claims
under § 553.84: one for violations of the Code, and one
for intentional violations of the Code. The claim for
intentional violations was subsequently dismissed with
prejudice. Doc. 160 at 7. Accordingly, only Count I, which
alleges violations of § 553.84, remains.
21, 2017, Pulte filed a Motion for Summary Judgment (Doc.
224). The Plaintiffs filed their Response on September 22,
2017 (Doc. 231). The Defendant did not file a Reply.
is entitled to summary judgment when the party can show that
there is no genuine issue as to any material fact and that
movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56. Which facts are material depends on the
substantive law applicable to the case. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
moving party bears the burden of showing that no genuine
issue of material fact exists. Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
party moving for summary judgment points out an absence of
evidence on a dispositive issue for which the nonmoving party
bears the burden of proof at trial, the nonmoving party must
“go beyond the pleadings and by [his] own affidavits,
or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that
there is a genuine issue for trial.” Celotex Corp.
v. Catrett, 477 U.S. 317, 324-25 (1986) (internal
quotations and citation omitted). Thereafter, summary
judgment is mandated against the nonmoving party who fails to
make a showing sufficient to establish a genuine issue of
fact for trial. Id. at 322, 324-25. The party
opposing a motion for summary judgment must rely on more than
conclusory statements or allegations unsupported by facts.
Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th
Cir. 1985) (“conclusory allegations without specific
supporting facts have no probative value”).
Florida Statute § 553.84
Statute § 553.84, titled “Statutory civil action,
” provides a cause of action for anyone damaged as a
result of a violation of the Florida Building Code:
Notwithstanding any other remedies available, any person or
party, in an individual capacity or on behalf of a class of
persons or parties, damaged as a result of a violation of
this part or the Florida Building Code, has a cause of action
in any court of competent jurisdiction against the person or
party who committed the violation.
Fla. Stat. § 553.84. The statute also provides the
homebuilder with a defense, so long as (1) the homebuilder
obtains any required building permits, and the appropriate
agency approves the plans; (2) the project passes all
required inspections under the Code; and (3) there is no
personal injury or damage to property other than the property
that is the subject of the permits, plans, and inspections.
Id. However, ...