'This Court Decision Could be a Game-Changer.' Florida Firm Sways 3rd DCA Opinion
Some attorneys are calling it a wake-up call for construction presuit notice under Florida law.
A feature article by Lisa Willis as published in LAW.com | DRB Daily Business Review
Fifty-nine-attorney strong law firm Tripp Scott received a favorable Third District Court of Appeal opinion recently on behalf of its client, Moss & Associates, regarding a lawsuit they faced from a private resident at Brickell Heights East condominium in Miami.
In Moss & Associates, LLC., v. Daystar Peterson and Brickell Heights East Condominium Association, Inc., a stay was requested to Miami-Dade Circuit Court Judge Valerie R. Manno Schurr, presiding over the lower court case, which was denied. A petition for writ of certiorari immediately followed.
The stay hinged on a Florida statute the lawyers said was crucial to their case, which involved serving a presuit notice aimed at sparking confidential settlement negotiations and reducing litigation.
"This court decision could be a game-changer," said Alex P. Rosenthal of the Rosenthal Law Group in Weston. While not associated with this litigation, Rosenthal's practice includes construction litigation.
"It’s a reminder that timing and procedure matter as much as the facts. [The 3rd DCA ruling] sent a clear message: if you’re dealing with a construction defect claim in Florida, you have to follow the presuit notice requirements under Chapter 558—or risk having your case stalled or tossed."
Moss is a noted national and South Florida construction management firm. Daystar Peterson is known professionally as rapper Tory Lanez. According to Realtor.com, Peterson owns the Brickell highrise condo.
The lawsuit alleged that Moss, who was hired to do work at the building, left Peterson's unit damaged.
However, petitioner counsel Tripp Scott was able to show that the resident didn't follow proper protocols before filing under statute 558, which was enacted by the Florida legislature as an alternative for resolving construction disputes.
The trio of appeals court Judges said in their Feb. 26 conclusion, "Moss asserted that Peterson did not provide it with the presuit notice of claim required by section 558.004. Therefore, the action must be stayed until Peterson complies with the statute ... We grant the petition and quash the trial court’s order denying the motion to stay litigation," said Tripp Scott director William C. Davell, who along with firm associates Lexy Semino, Jennifer H. Wahba and Robert L. Scheppske III represented Moss in the certiorari proceedings while Semino handled the lower court proceedings.
Daystar Peterson and Brickell Heights were represented by the Morgan Law Group of Coral Gables, which did not return a call for comment by press time.
"It's a very, very rare that we don't receive a 558, notice at all," said Davell. "Frankly, I was blindsided when I just received a lawsuit for which I had not received a 558 previously, and once we decided to move for a stay, I realized that just the complete absence of a 558 encouraged me that if we had to proceed with an appeal, and when the judge denied our motion for a stay, I thought we had very favorable prospects with a petition for certiorari."
Semino said, "The importance of the ruling is that the appellate court said this is a prerequisite to you filing suit, and the statute is mandatory; judges must follow the statute."
"When the opposing side took the position that this was not a construction defect case at all, I think that's when I felt that if we had to resolve this in front of the third DCA, I liked our chances because it on its face, the complaint was very clear, that this was a construction defect case," Semino said.
Moss attorney Jennifer Wahba said the whole point of the statute set forth by the legislature is to eliminate the need for litigation. "We argued on certiorari that we are suffering irreparable harm that can't be corrected on final appeal because we shouldn't have been sued in the first place." Wahba continued. "The third DCA said that they found that the 558 statute requiring a stay is essentially comparable to the condition precedent of insurance context and other similar contexts. So they found irreparable harm, which is very good for us."
Case Details
Appeal: A Writ of Certiorari from the Third District Court of Appeal to the lower court.
Lower Court: Circuit Court for Miami-Dade County, Valerie R. Manno Schurr, Judge.
Lawfirms: Tripp Scott, P.A. and William C. Davell, Robert L. Scheppske III, Lexy Semino and Jennifer H. Wahba (Ft. Lauderdale), for petitioner.
No appearance for respondents.
Judges: Chief Judge Thomas Logue, Judge Fleur J. Lobree and Judge Kansas R. Gooden with Lobree writing the opinion.
Case: No. 3D24-2118
Lower Tribunal No. 24-4997-CA-01
Petitioner: Moss & Associates, LLC,
Respondants: Daystar Peterson and Brickell Heights East Condominium Association, Inc.,
A lifeline for contractors
Rosenthal said this ruling isn’t just legal fine print. "It’s a lifeline for contractors and a warning for property owners," the attorney said.
In this case, the unit owner did not hire the contractor to construct or perform work on the condo. However, the trial court held the unit owner was still deemed to be a "claimant" under chapter 558.
Attorneys say this ruling cements that presuit notice requirements for construction defects are not something to be ignored.
