BANNER SUPPLY CO., PETITIONER,
v.
JASON HARRELL AND MELISSA HARRELL, ETC., RESPONDENTS
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Banner Supply Company petitioned for a writ of certiorari to challenge the trial court's denial of its motion to abate proceedings under Florida's construction defect statute (Chapter 558). The court denied the petition, holding that Banner forfeited its right to abatement by failing to comply with statutory inspection and negotiation requirements after being given notice and opportunity to do so.
The court held that Banner Supply's motion to abate should be denied because abatement would have been futile. Although the claimants failed to comply strictly with Chapter 558's notice requirements, Banner had the opportunity to inspect and negotiate but chose instead to wait and file a motion to abate. By the time of the hearing, the statutory period had passed, making abatement a meaningless remedy.
[1] A trial court may deny a motion to abate proceedings under Chapter 558 of the Florida Statutes if abatement would be futile due to the passage of time and the moving part…
[2] Chapter 558 of the Florida Statutes, governing construction defect claims, requires claimants to provide notice and an opportunity for inspection before filing suit.
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Join FLexlaw to unlock all legal intelligence“Banner Supply had the opportunity to comply with the requirements of Chapter 558 and was given the opportunity by the Harrells to timely inspect and it chose not to do so. Abatement, at that point, would have been futile.”
Establishes that Banner forfeited its right to abatement by failing to act despite notice and invitation to inspect.
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Join FLexlaw to unlock all legal intelligenceThe Harrells filed a putative class action on February 3, 2009, asserting personal injury claims arising from allegedly defective drywall, which do no…
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Banner Supply Company (“Banner”) petitions for a writ of certiorari to quash the trial court’s order denying Banner’s motion to abate or, in the alternative, for a writ of mandamus directing the trial court to fulfill a mandatory duty to abate the proceedings below. We deny the petition for certiorari as well as the alternative petition for a writ of mandamus.
The claimants below (“Harrells”) filed the initial complaint on February 3, 2009, as a putative class action suit seeking damages allegedly arising out of construction using defective drywall imported from China.1 The initial complaint asserted claims for personal injury due to alleged defective drywall. It did not assert a claim for property damage due to the defective drywall.2 Although Chapter 558 does not apply to claims for personal injury, the Har-rells simultaneously served Banner with a letter advising it of notice of claim under Chapter 558 of the Florida Statutes. On March 17, 2009, the Harrells filed an amended complaint asserting a claim for property damage due to the alleged defective drywall, to which Chapter 558 does apply. Banner Supply filed a motion to abate pursuant to Chapter 558, which was denied by the trial court judge.3 Based on the facts of this case, we adopt the trial court’s reasoning and deny the petition for certiorari.
The record shows that the Harrells failed to follow the statutory requirements of notice and opportunity to inspect prior to filing suit.4 5 They gave separate “no*100tice” at time of filing the initial complaint, which claims were not subject to Chapter 558. Although the Harrells invited inspection, Banner Supply did nothing to attempt to comply with the noticed statute and to inspect the property. Forty-two days later, the Harrells amended their initial complaint to include a claim for property damages due to the alleged defective dry wall thereby invoking Chapter 558, but without giving the statutorily required sixty days notice prior to filing the amended complaint. Banner Supply, again, did nothing to comply with Chapter 558 in response to the amended complaint. It did not seek to inspect or negotiate a resolution. All it did was file a motion to abate and wait until the hearing. By the time Banner’s motion to abate was heard by the trial court on July 1, 2009, more than sixty days had passed since the amended complaint was filed and the trial court determined, and we agree, that abatement would have been futile. Banner Supply had the opportunity to comply with the requirements of Chapter 558 and was given the opportunity by the Harrells to timely inspect and it chose not to do so. Abatement, at that point, would have been futile.6 See generally Angrand v. Fox, 552 So.2d 1113 (Fla. 3d DCA 1989). Petition for certiorari denied.
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Emp'rs Ins. Co. of Wausau v. BL Cos. Conn., Inc. (M.D. Fla. 2025)…eview of Florida caselaw indicates that substantial compliance suffices. Hebden, 3 So. 3d at 419 (holding that the “failure to strictly comply with Chapter 558 d[oes] not forfeit the[] right to seek [] offset damages”); Banner Supply Co. v. Harrell, 25 So. 3d 98, 100, n.4, n.5 (Fla. 3d DCA 2009) (concluding that a defendant had no occasion to complain of the claimants' “fail[ure] to [provide] notice and opportunity to inspect prior to filing suit,” when the defendant itself did not comply with “statutory ti…
Authorities Cited
- Angrand v. Morry FOX, D.O., 552 So. 2d 1113 (Fla. 3d DCA 1989)