GASTON LEMELIN, APPELLANT,
v.
M. ARTHUR GENSLER, JR., AND ASSOCIATES, APPELLEES
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A Florida appellate court reversed a summary judgment dismissing a negligent design claim as barred by the statute of limitations, holding that the defendant failed to meet its burden of proving all four triggering dates under the applicable statute.
The court held that the defendant failed to meet its burden for summary judgment because it did not prove the nonexistence of a material fact regarding all four possible triggering dates, and the burden does not shift to the plaintiff until the movant has conclusively demonstrated the nonexistence of any genuine issue of fact.
[1] A statute of limitations defense requires the movant to conclusively establish the nonexistence of any genuine issue of material fact.
[2] The burden is on the party moving for summary judgment to prove the nonexistence of any fact on any material issue before the opposing party must present evidence.
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Join FLexlaw to unlock all legal intelligence“Until it is determined that the movant has successfully met his burden of proving the nonexistence of any fact on any material issue, the opposing parties are under no obligation to show that issues do remain to be tried.”
Establishes the standard for summary judgment and when the burden shifts to the nonmovant
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Join FLexlaw to unlock all legal intelligenceGaston Lemelin sued M. Arthur Gensler, Jr., and Associates for injuries caused by negligent design, planning, and construction. The defendant moved fo…
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PER CURIAM.
This appeal is from a summary judgment entered on a finding that the plaintiff’s claim for injuries caused by negligent design, planning, and construction, is barred by the statute of limitations.
Section 95.11(3), Florida Statutes (1989), provides that the four-year limitations period begins to run from (1) the date of actual possession by the owner, (2) the date of the issuance of the certificate of occupancy, (3) the date of abandonment of construction if not completed, or (4) the date of termination of the contract between the professional engineer, registered architect, or licensed contractor and his employer, whichever date is latest.
The defendant argues that it has met its burden for the purpose of a summary judg ment by showing that the statute of limitations commenced to run on two of the four possible times provided by the statute. It concedes that it has proved nothing about the other two dates, but argues that the burden shifts to the plaintiff, as nonmov-ant, to come forward with proof that one of the remaining two events would preclude the action from being barred by the statute of limitations. We disagree and reverse.
Until it is determined that the movant has successfully met his burden of proving the nonexistence of any fact on any material issue, the opposing parties are under no obligation to show that issues do remain to be tried. Holl v. Talcott, 191 So. 2d 40 (Fla.1966). In the absence of competent evidence as to the date of occurrence for each of the four events, or evidence that one or more of the statutory events is inapplicable, there is no way to determine which event occurred last. With such gaps in the record as to material evidence, the defendant has not demonstrated conclusively the nonexistence of any genuine issue of fact. Dodge v. William E. Arnold Co., 343 So. 2d 1359 (Fla. 1st DCA 1977).
Reversed and remanded for further appropriate proceedings.
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Spring Isle Cmty. Ass'n, Inc. v. Herme Enters., Inc. (Fla. 5th DCA 2021)…occurrence for each of the four triggering events set forth in section 95.11(c)(3), or evidence that one or more statutory events is inapplicable, there is no way to determine which event occurred last. Lemelin v. M. Arthur Gensler, Jr. & 9 Assocs., 570 So. 2d 1131, 1132 (Fla. 3d DCA 1990). Therefore, without sufficient evidence to determine the contract completion date, a genuine issue of material fact remains as to the commencement date of the repose period. Accordingly, we conclude that the trial court erre…
Authorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Dodge v. William E. Arnold Co. & Fid. & Cas. Co. of N.Y., 343 So. 2d 1359 (Fla. 1st DCA 1977)