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Harrell v. Ryland Group

Florida Court of Appeals, First District

August 13, 2019

James Harrell, Appellant,
v.
The Ryland Group, doing business as Ryland Homes, a foreign for-profit corporation, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Duval County. Karen K. Cole, Judge.

          Christopher W. Hewett of Law Office of Nooney & Roberts, Jacksonville, for Appellant.

          J. Logan Murphy, Marie A. Borland, and J. Rocco Cafaro of Hill, Ward & Henderson, P.A., Tampa, for Appellee.

          Lewis, J.

         Appellant, James Harrell, appeals the final summary judgment entered in favor of Appellee, The Ryland Group, Inc., d/b/a Ryland Homes, and raises two issues. Appellant argues that the trial court erred in ruling that the statute of repose of section 95.11(3)(c), Florida Statutes (2016), applies. In the alternative, he argues that Appellee failed to establish that the statute of repose had run. We affirm.

         Background

         In June 2016, Appellant filed against Appellee an amended complaint for damages for injuries he allegedly sustained around June 6, 2012, when an attic ladder he was climbing at a residential home ("the home") for purposes of repairing a leak collapsed underneath him.[1] Appellant alleged that Appellee constructed and sold the home prior to June 6, 2012, and was negligent "by failing to ensure that the attic ladder was installed in a secure manner with the appropriate hardware" and "by failing to verify that the ladder was secure before selling the home." Appellee filed a motion to dismiss, arguing in part that Appellant's claim was barred by the ten-year statute of repose of section 95.11(3)(c), Florida Statutes. The trial court found that the statute is applicable because an attic ladder is an improvement to real property, but denied the motion upon further finding that it was not clear from the face of the complaint whether the suit was filed before the expiration of the statute of repose.

         Appellee then filed a motion for summary judgment, in which it alleged and argued as follows. In July 2003, Appellee entered into an agreement with the original owners, pursuant to which it was to construct and sell the home to them. On or around April 30, 2004, the construction of the home was completed and a certificate of occupancy was issued. By that date, final performance had occurred and final payment had become due for all the contracted-for services related to the construction of the home. On or around May 7, 2004, Appellee executed a warranty deed conveying title to the home to the original owners, who took actual possession of the home. As found by the trial court, the installation of the attic ladder was an improvement to real property; thus, section 95.11(3)(c) applies. The issuance of the certificate of occupancy, the conveyance of the home to the original owners, and the recording of the warranty deed confirm that "all construction activities on the Home were complete, and paid for, and that the Original Owners took actual possession of the Home on [May 7, 2004]." As such, any claims relating to the home expired ten years later, on May 7, 2014, rendering Appellant's claim time barred.

         Appellee filed several exhibits in support of its motion. A rider to the agreement between Appellee and the original owners reflects a contract date of July 29, 2003, and an estimated closing date of March and that the contract included optional "[p]ull down attic stairs" for $249. A certificate of occupancy was issued on April 30, 2004, stating that the home "has been completed to the best of our knowledge in compliance with all Building Code and Zoning Regulations applicable therein." A warranty deed reflects that Appellee conveyed the home to the original owners on May 7, 2004. Appellee also filed the affidavit of William Berryhill, the vice-president of the successor corporation by merger to Appellee, in which Berryhill attested in part as follows:

5.. . . The issuance of the Certificate of Occupancy indicates that construction of the Home was completed as of April 30, 2004. I know this based on Ryland's standard building procedures and I can also attest to the fact that Ryland's standard building procedures regarding completion of construction and application for the Certificate of Occupancy are common to other production home builders.
6. To be even more specific, issuance of the Certificate of Occupancy on April 30, 2004 indicates that as of that date final performance of all of the contracted-for services provided by the professional engineer, registered architect, or licensed contractor with respect to the Home were complete. In other words, on April 30, 2004 all of the contract(s) . . . were complete with respect to the Home.
8. Ryland's procedures and protocols would not have permitted the conveyance of the Home as signified by the Warranty Deed without final completion of the contract(s) . . . with respect to the Home and final payment (i.e. closing) delivered to Ryland by the Original Owners.
9. The recording of the Warranty Deed on or about May 7, 2004 provides final confirmation that all construction activities on the Home were complete, and paid for, and that the Original Owners took actual possession of the Home on that date.

         In his response, Appellant argued that section 95.11(3)(c) does not apply because "the act of fastening a pre-assembled attic ladder does not constitute design, planning or construction of an improvement to real property" and even if the statute were applicable, Appellee failed to establish that the alleged negligent act occurred more than ten years before this action was filed because it has not shown when the ladder was installed. At the motion hearing, Appellant's counsel argued that although the summary judgment evidence indicates that the contract had been completed, it "ignores the fact that sometimes builders have to come back out and do things that they forgot to do as part of that contract. And ...


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