[CLC-Discussion] New Statute of Repose Decision in 5th DCA

Mon May 11 11:15:48 PDT 2015

I think it depends what you agree to.  If you reduce a disputed fact to
an undisputed fact, i.e., "the parties agree that not withstanding the
timing of actual final payment upon resolution of disputed items, the
contract shall be deemed to have been completed on January 15, 2015."
You are simply agreeing to a fact that might have otherwise been
disputed.  

On the contrary, if you said, "The parties agree on this 1st day of
June 2015 that all actions arising in anyway out of this agreement shall
be brought on or before June 1, 2020 or be forever barred," you probably
would in fact run afoul of 95.03 if actions would have otherwise been
permitted beyond that date. 

Robert E. Doan
County Attorney's Office
123 West Indiana Avenue, Ste. 301
DeLand, Florida 32720-4613
Telephone: (386) 736-5950
Fax: (386) 736-5990
Email: rdoan at volusia.org 

>>> "Bryan L. Capps" <BCapps at moopd.com> 5/11/2015 2:05 PM >>>
Might not such a provision be void under Fla. Stat.
§95.03<http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0095/Sections/0095.03.html>?

Bryan L. Capps, Esq.
Board Certified in Construction Law by the Florida Bar
Moye, O'Brien, Pickert & Dillon, LLP
800 S. Orlando Ave.
Maitland, FL 32751
Ph:  (407) 622-5250
Cell: (407) 808-0098
bcapps at moopd.com<mailto:bcapps at moopd.com>
www.moopd.com<http://www.moopd.com>

-----Original Message-----
From: clc-discussion-bounces at lists.flabarrpptl.org
[mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of
Robert Doan
Sent: Monday, May 11, 2015 1:37 PM
To: clc-discussion at lists.flabarrpptl.org 
Subject: Re: [CLC-Discussion] New Statute of Repose Decision in 5th
DCA

And perhaps a new practice point to consider:

In drafting settlement agreements where final payment was delayed for
any reason, the parties should attempt to agree to and memorialize an
agreed project completion date for the purposes of any future litigation
related to latent defects. One less thing to litigate later on.

Robert E. Doan

County Attorney's Office

123 West Indiana Avenue, Ste. 301

DeLand, Florida 32720-4613

Telephone: (386) 736-5950

Fax: (386) 736-5990

Email: rdoan at volusia.org<mailto:rdoan at volusia.org>

>>> Fred Dudley
<dudley at mylicenselaw.com<mailto:dudley at mylicenselaw.com>>
5/11/2015 12:55 PM >>>

I understand, but would be opposed to opening up the SOR for this
purpose.

Fred R. Dudley, Partner

Board Certified Construction Lawyer

Dudley, Sellers & Healy, P. L.

SunTrust Financial Center, Suite 301

3522 Thomasville Road

Tallahassee, Florida 32308

Cell: (850) 294-3471

Direct: (850)692-6368

dudley at mylicenselaw.com<mailto:dudley at mylicenselaw.com>

From:
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[mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of
Robert Worman

Sent: Monday, May 11, 2015 12:18 PM

To: Timothy R. Moorhead; Jeff Price; 'Roberts, Hardy L.'; 'CLC
Discussion'

Subject: Re: [CLC-Discussion] New Statute of Repose Decision in 5th
DCA

So an owner can intentionally delay payment, or, where in good faith
disputes final payment by litigation which it loses, and then is
rewarded by getting the windfall of an extended SOL under the Statute of
Repose?

Does not seem fair.  Maybe we should be considering a legislative fix?

Regards,

Robert B. Worman

Worman & Sheffler, P.A.

2707 West Fairbanks Avenue

Suite 200

Winter Park, FL 32789

407 843-5353

rworman at wormanlaw.com<mailto:rworman at wormanlaw.com<mailto:rworman at wormanlaw.com%3cmailto:rworman at wormanlaw.com>>

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From:
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[mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of
Timothy R. Moorhead

Sent: Monday, May 11, 2015 11:30 AM

To: Jeff Price; 'Roberts, Hardy L.'; 'CLC Discussion'

Subject: Re: [CLC-Discussion] New Statute of Repose Decision in 5th
DCA

Peers:

Frankly, I think the 5th got it right.  I would be cautious that the
question put to the Court was very finite and avoid the urge to over
apply the ruling.  The question was, when is a contract complete for the
purposes of the Statute of Repose?  The simple answer, in my simple mind
at least, is when all performance due thereunder, including payment has
occurred.  Here, payment was due after performance and is a clear
indication of the Owner's agreement that performance by the Contractor
was complete.

The legislature should have said "construction" if that is what they
meant.  They said "contract."  We have to assume that they knew and
appreciated the difference.

Timothy R. Moorhead, Esq.

[cid:image001.jpg at 01CF533E.817267B0]

Wright, Fulford, Moorhead & Brown, P.A.

505 Maitland Avenue

Suite 1000

Altamonte Springs, FL 32701

(407) 425-0234

(407) 425-0260 (fax)

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[mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Jeff
Price

Sent: Monday, May 11, 2015 10:43 AM

To: 'Roberts, Hardy L.'; 'CLC Discussion'

Subject: [CLC-Discussion] New Statute of Repose Decision in 5th DCA

Cypress v. Bergeron, 5D13-4102 (May 8, 2015).

The 5th DCA has created an unnecessary rule for when a construction
contract is complete. They have created what can only be called a
bright-line rule. The contract between an Owner and a Contractor is
complete upon payment to the Contractor.

A bright line rule should work all the time and be equitable to both
parties if, as the court said, the statute language is unambiguous.

"[A] bright-line test will ordinarily require only a cursory review of
the record by a trial court." [A] bright-line rule [is] appealing in
that it establishes a rule that is easy to apply and relieves the trial
court and litigants of the burden of determining and guessing as to
whether an activity is merely passive or active." Chemrock Corp. v.
Tampa Elec. Co., 71 So. 3d 786, 791-92 (Fla. 2011).

By holding that the date of final payment to the contractor signifies
the contract completion the Court add ambiguity to the mix. Further,
this ruling ignores three things in my mind:

1)       Reality - the facts on the ground. For example: In this case,
had the Owner and/or the A/E accepted the buildings and were they being
used and occupied by the Owner? At the time of submitting the final pay
application did anyone disagree that the work was done?

a.      Was the 3 day lag for payment simply a "passive" ministerial
act whose timing was dependent upon the postal service?

b.      The pay app was delivered on Wednesday and "final payment" was
made on Friday. So, was the check written on Friday? Was it "deposited"
or was it "settled" on Friday at the bank? Was it "mailed" on Friday?
Was it "signed" on Friday? Or was it handed to the contractor on
Friday?

If the Court is creating a bright-line rule about when a construction
contract is complete ("Completion of the contract means completion of
performance by both sides of the contract") then we need more direction
than "payment was made."

The thing is, the trial court can hold an evidentiary hearing. The DCA
should have punted and said that the date of completion of the contract
is fact dependent.

2)      The Fudge Factor - Owners now get to determine the contract
completion date (and this is just as unfair as allowing the GC to
determine it by sending the final pay app early). Would the Court have
ruled differently if the Owner took 90 days to pay? If they would have
ruled differently, then this is a bad bright-line rule.

3)      Slow Pay Incentive - Any reason for an Owner to pay quickly 
given this ruling? Will this ruling delay final payments in some
regards?

Does the Court's ruling work if, say, the Owner and GC are at odds at
the end of the contract?

Let's try an everyday construction law example:

GC says they are done and sends final pay app and everything else
required by statute and the contract.

Owner says GC is not done and withholds payment claiming some sticking
point (how many times does that happen?).

For the next six months both sides argue about something. (I had one
where it was door numbers in the wrong typeface).

After six months they all realize the lawyers are costing too much
money and they just drop the matter.

No written settlement, no promises, no extra performance by either
side; they just decide to stop fighting.

The Owner sends the final payment. Is the contract complete now? Or was
it complete six months earlier?

Does the 5th DCA's bright-line rule accomplish justice if, later on in
a repose fight, the Owner gets to claim an extra 6 months?

Jeffrey L. Price, Esq.

Florida Bar Board Certified - Construction Law Florida Civil-law
Notary

Niesen|Price|Worthy|Campo, PA

5216 SW 91st Drive  Gainesville, FL 32608

Ph (352) 373-9031   Fax (352) 373-9099

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[mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of
Roberts, Hardy L.

Sent: Friday, May 08, 2015 2:14 PM

To: CLC Discussion
(clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org%3cmailto:clc-discussion at lists.flabarrpptl.org>>)

Subject: [CLC-Discussion] CLC -- New Statute of Repose Decision

The Fifth District held today (in the attached opinion that is not yet
final) that the statute of repose commenced to run when a construction
contract was completed rather than when construction was completed. The
parties argued over whether the statute of repose began to run from the
date the contractor made its final application for payment or whether
the period ran from the date the final payment was made. The Fifth DCA
held that the contract at issue was complete when the final payment was
made and that the statute began to run on that later date.

[Carlton Fields Jorden Burt, P.A.]

Hardy L. Roberts

Attorney at Law

Board Certified in Construction Law by the Florida Bar

4221 W. Boy Scout Blvd., Ste. 1000

Tampa, Florida  33607-5780

Direct:  813.229.4105 | Fax:  813.229.4133

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