JACQUELYN WAMBLES, ET AL., APPELLANTS,
v.
AMREP SOUTHEAST, INC., ETC., ET AL., APPELLEES
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Jacquelyn Wambles and her husband appealed a summary judgment dismissing their personal injury action based on the statute of limitations for construction defect claims under Florida law. The court affirmed, holding that the defendant's affidavit establishing that the building was completed and occupied prior to June 1, 1970 was sufficient to trigger the 15-year limitations period, and that the plaintiff's counter-affidavit failing to establish the absence of records was insufficient to create a genuine issue of material fact.
The court held that the defendant's affidavit stating from personal knowledge that the certificate of occupancy was issued prior to June 1, 1970 was sufficient to support summary judgment. The plaintiff's counter-affidavit, which failed to establish that the building and zoning records would normally be kept and maintained for over 15 years, was insufficient to overcome the positive testimony. The court also held that if the certificate was never issued, the latest date of the other statutory listed incidents that did occur (such as actual possession or completion) would control the limitations period.
[1] A statute of repose for construction defects requires that an action be commenced within 15 years from the latest of specific events, including the date of actual possess…
[2] Negative testimony, such as the absence of a record, is insufficient to overcome positive testimony based on personal knowledge regarding the issuance of a certificate of…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In any event, the action must be commenced within 15 years after the date of 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 between the professional engineer, registered architect, or licensed contractor and his employer, whichever date is latest.”
Establishes the statutory limitations period for construction defect claims under Florida law that the trial court applied to bar the plaintiff's action.
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Join FLexlaw to unlock all legal intelligenceOn November 15, 1985, Jacquelyn Wambles was injured while working in a commercial building constructed by Amrep Construction Corporation on property o…
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HARRIS, Judge.
Jacquelyn Wambles and her husband, Billy, appeal from a summary judgment entered against them in their personal injury action. Finding no error, we affirm.
On November 15, 1985, Jacquelyn Wam-bles was injured while working in a commercial building built by appellee Amrep Construction Corporation on property owned by appellee Amrep Southeast, Inc. The building had been completed and leased to Philips Industries, Inc. and possession had been taken prior to June 1, 1970.
Appellees moved for summary judgment on the basis of Section 95.11(3)(c), Florida Statutes which provides:
In any event, the action must be commenced within 15 years after the date of 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 between the professional engineer, registered architect, or licensed contractor and his employer, whichever date is latest.
Appellees submitted an affidavit in support of their motion signed by Clyde Larra-more stating: 1. That he was an officer of appellee and authorized to make the statement;
2. That he was vice president of the owner at the time of construction, was thoroughly familiar with the events, and the statement was made from personal knowledge;
3. That the building was completed, leased and occupied prior to June 1, 1970; and
4. That a certificate of occupancy had been issued prior to that time.
Appellants filed a counter-affidavit signed by Clarence Hutchinson stating that he was an employee of Marion County Building and Zoning Department and that after a search of the records he could find no evidence that the certificate of occupancy was ever issued.
Because Mr. Hutchinson’s affidavit failed to state that such records would normally be kept and, if kept, maintained for over 15 years, this negative testimony is insufficient to overcome the positive testimony that “on personal knowledge” the certificate of occupancy was issued prior to June 1, 1970. Indeed the most that could be inferred from Mr. Hutchinson’s affidavit, if we assume such records were kept and maintained, is that the certificate of occupancy never issued. In such case, instead of extending indefinitely the statute of limitations, we hold that the latest date of the statutory listed incidents which did occur would control.
It is argued that the Larramore affidavit was also insufficient because it failed to lay the proper predicate to show what personal knowledge Larramore had to justify his statement that the certificate of occupancy was issued prior to June 1, 1970. For example, was it delivered to him or did he see it in the corporate file? Or did someone merely tell him that the certificate had issued? The answer is that the sufficiency of the affidavit in this regard was not raised before the trial court and is now barred on appeal. E.J. Assoc. v. J.E. & A. Price Foundation, 515 So. 2d 763 (Fla. 2d DCA 1987); Scott v. NCNB National Bank of Florida, 489 So. 2d 221 (Fla. 2d DCA 1986); O’Quinn v. Seibels, Bruce & Co., 447 So. 2d 369 (Fla. 1st DCA 1984).
AFFIRMED.
COBB and GOSHORN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Graney v. Caduceus Props., LLC, 91 So. 3d 220 (Fla. 1st DCA 2012)…ainst Graney, KTD and Gordon alleging that the HVAC system was improperly designed. The certificate of occupancy to the subject property here was issued on August 5, 2005; thus, the statute began to run on that date. See Wambles v. Amrep Se., Inc., 568 So. 2d 125, 126 (Fla. 5th DCA 1990). The four-year statute of limitations of section 95.11(3)(c), Florida Statutes (2006), governs actions on the design and construction of improvements to real property, rather than the five-year limitations period under secti…
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Margarette R. Vilvar v. Deutsche Bank Tr. Co. Americas formerly known as Banker's Tr. Co., 83 So. 3d 853 (Fla. 4th DCA 2011)…nt fraud or misrepresentation, challenges to affidavits in support of motion for summary judgment must be raised in pleadings or at hearing on motion for summary judgment, not in motion for relief from judgment); see also Wambles v. Amrep Se., Inc., 568 So. 2d 125, 126 (Fla. 5th DCA 1990) (concluding that the sufficiency of the affidavit based on the affi-ant’s personal knowledge was not raised before the trial court, thus barring it from being raised on appeal); cf. Coastal Caribbean Corp. v. Rawlings, 361 S…
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Vindo K. Kalidas v. Gen. Elec. Cap. Corp., 623 So. 2d 872 (Fla. 5th DCA 1993)…PER CURIAM. AFFIRMED on the authority of Wambles v. Amrep Southeast, Inc., 568 So. 2d 125 (Fla. 5th DCA 1990). HARRIS, C.J., and W. SHARP and PETERSON, JJ., concur.…
Authorities Cited
- E.J. Assocs., Inc. v. The John E. & Aliese Price Found., Inc., 515 So. 2d 763 (Fla. 2d DCA 1987)
- O'Quinn v. Seibels, 447 So. 2d 369 (Fla. 1st DCA 1984)
- Wilson v. State, 489 So. 2d 221 (Fla. 2d DCA 1986)
- Scott v. NCNB Nat'l Bank OF Fla., 489 So. 2d 221 (Fla. 2d DCA 1986)