December 13, 2019



January 15, 2021 Update – Bryan W. Black, Esq.

In June 2020, at the Fourth District Court of Appeals, Appellant/Plaintiff sought plenary review of the final “Order on Defendant’s Motion for Final Summary Judgment”. Appellant argued that (1) the lower court erred in granting final summary judgment in favor of Appellee/Defendant since failure to comply with the notice requirement of Fla. Stat. 558.004 is not dispositive of an action requiring dismissal with prejudice and (2) that the lower court erred in granting final summary judgment in favor of Appellee since Appellant substantially complied with the notice requirement of Fla. Stat. 558.004. Appellee/Defendant timely responded with its Answer Brief describing how “Plaintiff has no evidentiary basis for a claim for damages and has no disputed issues of fact to be determined by the jury” pursuant to Fla. Stat. 558.004(11).

On January 14, 2021, the Fourth District Court of Appeals Affirmed Per Curiam the Trial Court’s ruling. The Fourth District also granted Appellee’s Motion for attorney fees conditioned on the Trial Court’s determination that Appellee is entitled to fees under section Fla. Stat. 768.79. The ruling is not final until disposition of timely filed motion for rehearing.

Case Description:

Boca Raton, Florida Homeowner alleged in a Complaint that Defendant Roofer’s Stone-Coated Steel Roof and flat deck TPO installation was defective, violated Florida Building Code, violated workmanship standards and breached its Contract. The defective installation allegedly resulted in significant water and mold damage to the home’s interior. Homeowner allegedly suffered compensatory damages in excess of $100,000, incidental and consequential damages, and sought attorney’s fees.

Defendant moved for Final Summary Judgment arguing that Plaintiff failed to provide Defendant with the mandatory statutory Notice and Opportunity to Repair/Cure, as required by Florida Statute §558.004 and, therefore, pursuant to Florida Statute §558.004(11), Plaintiff was prohibited from going to trial against Defendant on any “unnoticed” defects. After hearing argument, the Court found that Plaintiff failed to comply with Fla. Stat. §558.004(1)(a), and pursuant to Fla. Stat. §558.004(11) the court shall allow the action to proceed to trial only as to alleged construction defects that were noticed and for which the claimant has complied with this chapter and as to construction defects reasonably related to, or caused by, the construction defects previously noticed. As a result of Plaintiff’s failure to comply with the mandatory requirements, Plaintiff had no evidentiary basis for a claim for damages and had no disputed issue of fact to be determined by the jury. Therefore, Final Judgment in favor of Defendant was granted.