James Harrell v. The Ryland Group, doing business as Ryland Homes, a foreign for-profit corporation ( 2019 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-3728
_____________________________
JAMES HARRELL,
Appellant,
v.
THE RYLAND GROUP, doing
business as Ryland Homes, a
foreign for-profit corporation,
Appellee.
_____________________________
On appeal from the Circuit Court for Duval County.
Karen K. Cole, Judge.
August 13, 2019
LEWIS, J.
Appellant, James Harrell, appeals the final summary
judgment entered in favor of Appellee, The Ryland Group, Inc.,
d/b/a Ryland Homes, and raises two issues. Appellant argues that
the trial court erred in ruling that the statute of repose of section
95.11(3)(c), Florida Statutes (2016), applies. In the alternative, he
argues that Appellee failed to establish that the statute of repose
had run. We affirm.
BACKGROUND
In June 2016, Appellant filed against Appellee an amended
complaint for damages for injuries he allegedly sustained around
June 6, 2012, when an attic ladder he was climbing at a residential
home (“the home”) for purposes of repairing a leak collapsed
underneath him. 1 Appellant alleged that Appellee constructed
and sold the home prior to June 6, 2012, and was negligent “by
failing to ensure that the attic ladder was installed in a secure
manner with the appropriate hardware” and “by failing to verify
that the ladder was secure before selling the home.” Appellee filed
a motion to dismiss, arguing in part that Appellant’s claim was
barred by the ten-year statute of repose of section 95.11(3)(c),
Florida Statutes. The trial court found that the statute is
applicable because an attic ladder is an improvement to real
property, but denied the motion upon further finding that it was
not clear from the face of the complaint whether the suit was filed
before the expiration of the statute of repose.
Appellee then filed a motion for summary judgment, in which
it alleged and argued as follows. In July 2003, Appellee entered
into an agreement with the original owners, pursuant to which it
was to construct and sell the home to them. On or around April
30, 2004, the construction of the home was completed and a
certificate of occupancy was issued. By that date, final
performance had occurred and final payment had become due for
all the contracted-for services related to the construction of the
home. On or around May 7, 2004, Appellee executed a warranty
deed conveying title to the home to the original owners, who took
actual possession of the home. As found by the trial court, the
installation of the attic ladder was an improvement to real
property; thus, section 95.11(3)(c) applies. The issuance of the
certificate of occupancy, the conveyance of the home to the original
owners, and the recording of the warranty deed confirm that “all
construction activities on the Home were complete, and paid for,
and that the Original Owners took actual possession of the Home
on [May 7, 2004].” As such, any claims relating to the home
1 Appellant filed the original complaint in September 2015
against Chandler’s Trim, Inc., who he alleged negligently installed
the attic ladder without “the proper hardware, including adequate-
sized screws” and as to whom he subsequently dismissed the action
with prejudice.
2
expired ten years later, on May 7, 2014, rendering Appellant’s
claim time barred.
Appellee filed several exhibits in support of its motion. A rider
to the agreement between Appellee and the original owners
reflects a contract date of July 29, 2003, and an estimated closing
date of March and that the contract included optional “[p]ull down
attic stairs” for $249. A certificate of occupancy was issued on
April 30, 2004, stating that the home “has been completed to the
best of our knowledge in compliance with all Building Code and
Zoning Regulations applicable therein.” A warranty deed reflects
that Appellee conveyed the home to the original owners on May 7,
2004. Appellee also filed the affidavit of William Berryhill, the
vice-president of the successor corporation by merger to Appellee,
in which Berryhill attested in part as follows:
5. . . . The issuance of the Certificate of Occupancy
indicates that construction of the Home was completed as
of April 30, 2004. I know this based on Ryland’s standard
building procedures and I can also attest to the fact that
Ryland’s standard building procedures regarding
completion of construction and application for the
Certificate of Occupancy are common to other production
home builders.
6. To be even more specific, issuance of the
Certificate of Occupancy on April 30, 2004 indicates that
as of that date final performance of all of the contracted-
for services provided by the professional engineer,
registered architect, or licensed contractor with respect to
the Home were complete. In other words, on April 30,
2004 all of the contract(s) . . . were complete with respect
to the Home.
....
8. Ryland’s procedures and protocols would not have
permitted the conveyance of the Home as signified by the
Warranty Deed without final completion of the
contract(s) . . . with respect to the Home and final
payment (i.e. closing) delivered to Ryland by the Original
Owners.
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9. The recording of the Warranty Deed on or about
May 7, 2004 provides final confirmation that all
construction activities on the Home were complete, and
paid for, and that the Original Owners took actual
possession of the Home on that date.
In his response, Appellant argued that section 95.11(3)(c) does
not apply because “the act of fastening a pre-assembled attic
ladder does not constitute design, planning or construction of an
improvement to real property” and even if the statute were
applicable, Appellee failed to establish that the alleged negligent
act occurred more than ten years before this action was filed
because it has not shown when the ladder was installed. At the
motion hearing, Appellant’s counsel argued that although the
summary judgment evidence indicates that the contract had been
completed, it “ignores the fact that sometimes builders have to
come back out and do things that they forgot to do as part of that
contract. And so, without knowing when this attic ladder was
installed, I don’t think [Appellee] can carry its burden of
establishing when the construction was abandoned or completed.”
The trial court entered final summary judgment for Appellee.
This appeal followed.
ANALYSIS
The party moving for summary judgment must establish the
absence of any genuine issue of material fact and its entitlement
to judgment as a matter of law. Bradley v. Fort Walton Beach Med.
Ctr., Inc., 260 So. 3d 1178, 1180 (Fla. 1st DCA 2018). When the
movant satisfies this initial burden, the burden shifts to the
opposing party to demonstrate the existence of disputed issues of
fact by presenting evidence of countervailing facts or justifiable
inferences from the facts presented. Id. A mere assertion that an
issue exists does not suffice; “general allegations and legal
argument do not constitute evidence of disputed issues of material
fact.” Id. The trial court must draw every possible inference in
favor of the nonmoving party and may grant the motion only if the
facts are so crystallized that nothing remains but questions of law.
Convergent Techs., Inc. v. Stone, 257 So. 3d 161, 166 (Fla. 1st DCA
2018). An order granting summary judgment is reviewed de novo.
Id.
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Likewise, an issue of statutory interpretation is reviewed de
novo. Whitney Bank v. Grant, 223 So. 3d 476, 479 (Fla. 1st DCA
2017). The polestar of statutory interpretation is legislative
intent, which is to be determined by first looking at the actual
language used in the statute. Searcy, Denney, Scarola, Barnhart
& Shipley v. State, 209 So. 3d 1181, 1189 (Fla. 2017). Where the
Legislature did not define the words in the statute, the language
is to be given its plain and ordinary meaning, which may be
derived from a dictionary. Debaun v. State, 213 So. 3d 747, 751
(Fla. 2017). If the statutory language is clear and unambiguous,
the court may not resort to the rules of statutory construction and
the statute must be given its plain and obvious meaning, unless it
would lead to an unreasonable result or a result clearly contrary
to legislative intent. Searcy, Denney, Scarola, Barnhart & Shipley,
209 So. 3d at 1189 (explaining that the court must give effect to all
parts of the statute and avoid readings that would render a part
thereof meaningless, and the court may not construe a statute in
a way that would extend, modify, or limit its express terms or its
reasonable or obvious implications).
Section 95.11(3)(c), Florida Statutes (2016), provides in
pertinent part as follows:
An action founded on the design, planning, or
construction of an improvement to real property . . . must
be commenced within 10 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 or her employer, whichever date is latest.[ 2]
2 The current version of the statute has the following
additional provisions:
With respect to actions founded on the design, planning,
or construction of an improvement to real property, if
such construction is performed pursuant to a duly issued
building permit and if a local enforcement agency, state
enforcement agency, or special inspector, as those terms
5
The legislative intent behind section 95.11(3)(c) was to protect
engineers, architects, and contractors from stale claims. Snyder v.
Wernecke, 813 So. 2d 213, 216 (Fla. 4th DCA 2002).
As such, the applicability of section 95.11(3)(c) turns on
whether Appellant’s action is founded on the “construction of an
improvement to real property.” We refer to the dictionary to
ascertain the plain and ordinary meaning of the words
“construction” and “improvement” because the Legislature did not
define them. “Construction” is defined as “[t]he act of building by
combining or arranging parts or elements; the thing so built.”
Construction, BLACK’S LAW DICTIONARY (11th ed. 2019).
“Improvement” is defined as “[a]n addition to property, usu. real
estate, whether permanent or not; esp., one that increases its value
or utility or that enhances its appearance.” Improvement, BLACK’S
LAW DICTIONARY (11th ed. 2019). 3 Cf. Hillsboro Island House
Condo. Apartments, Inc. v. Town of Hillsboro Beach, 263 So. 2d
209, 213 (Fla. 1972) (finding that beach erosion projects were
“capital improvements” for the purpose of the town charter and
relying on the fourth edition of Black’s Law Dictionary defining
“improvement” as “[a] valuable addition made to property (usually
real estate) or an amelioration in its condition, amounting to more
are defined in s. 553.71, has issued a final certificate of
occupancy or certificate of completion, then as to the
construction which is within the scope of such building
permit and certificate, the correction of defects to
completed work or repair of completed work, whether
performed under warranty or otherwise, does not extend
the period of time within which an action must be
commenced. Completion of the contract means the later
of the date of final performance of all the contracted
services or the date that final payment for such services
becomes due without regard to the date final payment is
made.
§ 95.11(3)(c), Fla. Stat. (2018).
3 These terms were defined in the same manner in the
previous edition. See Construction; Improvement, BLACK’S LAW
DICTIONARY (10th ed. 2014).
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than mere repairs or replacement of waste, costing labor or capital,
and intended to enhance its value, beauty or utility or to adapt it
for new or further purposes”).
Under the current definition of “improvement,” the attic
ladder need not be permanent and is not required to increase the
value and/or utility of the property. See Improvement, BLACK’S
LAW DICTIONARY (11th ed. 2019) (“An addition to property, usu.
real estate, whether permanent or not; esp., one that increases its
value or utility or that enhances its appearance.”). The attic ladder
is unquestionably an addition to real property, and it provides
added utility. While the attic could be accessed absent the pull-
down stairs with a household ladder, the pull-down stairs provide
convenience as they obliviate the need to have a standalone ladder
tall enough for attic access that one then has to carry to and
properly place under the attic opening. Nothing in the statutory
language or dictionary definition requires the addition to
significantly increase the value or utility of the property or to be
essential to the property. Given such, the attic ladder meets the
current definition of improvement.
We note that the attic ladder also meets the prior definition of
improvement because it is an addition to property, it amounts to
more than mere repair or replacement of waste, it cost labor and
capital given that it required installation and cost $249, and we
cannot conceive of a reason why the original owners would have
opted to pay for it other than to intend to enhance the value or
utility of the property. See Improvement, BLACK’S LAW
DICTIONARY (4th ed. 1969) (“A valuable addition made to property
(usually real estate) or an amelioration in its condition, amounting
to more than mere repairs or replacement of waste, costing labor
or capital, and intended to enhance its value, beauty or utility or
to adapt it for new or further purposes.”).
Case law supports our conclusion that the attic ladder
constitutes improvement to real property. For example, in Plaza
v. Fisher Development, Inc., 971 So. 2d 918, 924 (Fla. 3d DCA
2007), the Third District concluded that the store’s conveyor
system was a structural improvement to real property, not a
product to which strict liability would apply. The court noted that
the conveyor system was installed when the store was being built
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and reasoned that the conveyor is “‘an integral part of’ Pottery
Barn’s operation, in that the subject conveyor allowed items sold
to customers to travel easily from the second floor storage area to
the first floor retail area, and the conveyor system is affixed to the
real property, thereby adding value to the property.” Id.; see also
Simmons v. Rave Motion Pictures Pensacola, L.L.C., 197 So. 3d
644, 645, 647 (Fla. 1st DCA 2016) (affirming the judgment against
the appellant, who was injured when a movie theater seat broke
underneath him due to a failure in the welding in its bottom, upon
concluding that the seating system was a structural improvement
to real property, not a product, because “[the appellees] are not the
manufacturer of the theater seating system. There is also evidence
that the seating system is an integral part of the movie theatre’s
operation, as it was installed as part of the construction of the
theater, and the entire seating system was bolted to the floor.
Moreover, . . . there is no evidence that either the seat bottom or,
more importantly, the seating system could be disassembled and
resold.”); Bernard Schoninger Shopping Ctrs., Ltd. v. J.P.S.
Elastomerics, Corp., 102 F.3d 1173, 1175 (11th Cir. 1997) (finding
section 95.11(3)(c) applicable to the appellant’s claims stemming
from a leaky roof the appellee had installed because “[t]he
installation of over 100,000 square feet of membrane and
fiberboard [on top of the existing roof] at a cost of tens of thousands
of dollars is a ‘valuable addition’ to the Kmart building, and it
therefore qualifies as an ‘improvement’” (citation omitted)). Cf.
Dominguez v. Hayward Indus., Inc., 201 So. 3d 100 (Fla. 3d DCA
2015) (concluding that a pool filter, which is a component part of
the swimming pool, does not constitute an improvement to real
property under section 95.031(2)(b), Florida Statutes, which sets
forth a statute of repose for products liability claims and exempts
“improvements to real property, including elevators and
escalators”).
In Collins v. Trinity Industries, Inc., 861 F.2d 1364, 1364-65
(5th Cir. 1988), the Fifth Circuit determined that the appellant’s
claims were barred by the applicable statute of limitations, which
applied to claims “arising out of the deficiency in the design,
planning, supervision or observation of construction, or
construction of an improvement to real property,” because the
caged ladder from which he fell at the electrical generating facility
where he worked was an improvement to real property. The court
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noted that the ladder was field-bolted or welded to the structure,
and it “was designed as part of the overall project and was used
like a stair or elevator for ordinary movement around the plant.”
Id. at 1365. The court reasoned:
[T]he term improvement must be given its customary
meaning. Common definitions of the term generally refer
to a permanent addition that increases the value of the
property and makes it more useful. . . . The caged ladder
in issue was an integral part of the building, providing a
means of moving from one level to another. The ladder
was permanent affixed although, as the Mississippi
Supreme Court held, that feature is not required. The
ladder also added value to the refinery.
Id.; see also Tr. Co. Bank v. U.S. Gypsum Co., 950 F.2d 1144, 1152
(5th Cir. 1992) (finding that “‘asbestos-containing’ fireproofing
materials applied to the steel support structure and structural
ceiling of the bank building” are improvements to real property
because “[t]here is little doubt that the fireproofing materials in
this case increased the value of the bank building and made it more
useful”).
Similarly, in Diana v. Russo Development Corporation, 799
A.2d 689, 691 (N.J. Super. Ct. App. Div. 2002), the court held that
“a fixed vertical steel ladder attached to a concrete block wall
leading to a [] roof hatch” constituted an improvement to real
property for the purposes of the statute of repose. After noting that
the hatch and ladder constituted a single system, were
incorporated into the building, and served no purpose other than
to provide access to the building’s roof and that the fact that it was
a mass-produced item did not render the statute of repose
inapplicable because “[m]uch construction in a home involves so
called ‘mass-produced items,’” the court explained:
The hatch and ladder system appears to have been
installed during the construction of the building and was
not added later. The system provides a means of moving
from the leased space to the roof where the air
conditioning and heating equipment had been installed. .
..
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Hatch covers have also been found to be
improvements to real property where they were designed
to make the property more useful . . . .
While the ladder and hatch system could be removed
from the wall and roof relatively easily, there was no
indication that the structure was not designed to be a
permanent feature of the leased warehouse space. Today,
very few structures can be considered permanent, in the
sense that the structure cannot be removed. . . .
Plaintiff argues that there was no proof that the
hatch and ladder would increase the property's tax
assessment value . . . . However, value is not an exact
science but rather relative. Here, the claimed
improvement must create value to someone utilizing the
particular improvement. It need not in all cases affect the
tax assessment value. To us, it is not significant that a
ladder could easily reach the roof from outside this two-
story structure. For anyone who must be able to ascend
the roof in all types of weather conditions, the inside
ladder and hatch would constitute some value and
enhance the property from the user's perspective.
Clearly, labor and money were needed to install this
feature, which was neither a repair nor a replacement.
The record reflects that the roof hatch cost $350 in 1985
and after the accident to correct the backward roof hatch
alignment the cost was $250.
Thus, we conclude that the ladder and hatch system
enhanced the use of the property and cost labor and
money to build. This feature was part of the original
property and did not constitute a repair or replacement.
It also appears to be a permanent feature of the building
and adds some value to the property.
Id. at 693-96; see also Cherilus v. Fed. Exp., 87 A.3d 269, 278 (N.J.
Super. Ct. App. Div. 2014) (finding that a torklift that “facilitated
movement of cargo containers and enhanced the functioning of the
warehouse facility,” “was designed to be installed as an integral
feature of the property,” and “was intended to be a permanent
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fixture of the building” constituted an improvement to real
property); Garrett v. J.D. Specialties, Inc., 2:09-CV-195, 2010 WL
4791885, at *4 (E.D. Tenn. Nov. 18, 2010) (concluding that the
ladder that was attached to the outside of the building and
provided access to the roof was an improvement to real property);
Homrighausen by Homrighausen v. Westinghouse Elec. Corp., 832
F. Supp. 903, 906 (E.D. Pa. 1993) (finding that escalators are
improvements to real property because other forms of vertical
transportation, such as elevators and ski lifts, have been deemed
improvements and “[l]ike an elevator, an escalator’s purpose is to
provide effortless access between floors of the building. As such, it
is a valuable addition to the building in which it is attached.”).
Like the items in the foregoing cases, the attic ladder at issue
here was installed as part of the construction of the home, required
labor and money, made the property more useful/valuable in that
it provides a more convenient means of access to another level, was
not mere repair or replacement, and was affixed to the attic,
making it an integral part of the home. Having concluded that the
attic ladder constitutes an improvement to real property, the
question remains whether Appellant’s claim arises from the
construction of that improvement.
It is undisputed that the attic ladder was pre-assembled and
Appellee’s only involvement with the ladder was its installation.
Although Appellee did not construct the ladder itself, we find that
the action is founded on the construction of improvement to real
property because Appellant’s claim is that Appellee negligently
failed to ensure the secure installation of the ladder with the
proper hardware (not that the ladder itself was defective). That is,
the action is based on Appellee’s act of building by combining the
attic ladder with the attic, which it undisputedly constructed. See
Construction, BLACK’S LAW DICTIONARY (11th ed. 2019) (“The act
of building by combining or arranging parts or elements; the thing
so built.”). Therefore, we conclude that Appellant’s action is
founded on the construction of improvement to real property,
rendering section 95.11(3)(c) applicable.
Lastly, we must determine whether the ten-year statute of
repose of section 95.11(3)(c) had run. The statute requires the
action to be commenced within ten years after the date of: (1)
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actual possession by the owner, (2) issuance of a certificate of
occupancy, (3) abandonment of the construction if not completed,
or (4) completion or termination of the contract, whichever is
latest. § 95.11(3)(c), Fla. Stat. Appellant does not dispute that the
original owners took possession of the home on May 7, 2004, as
reflected by the warranty deed, that the certificate of occupancy
was issued on April 30, 2004, and that the construction was not
abandoned. The record evidence shows that the attic ladder was a
selected option for the construction of the home and the certificate
of occupancy was issued and the home was conveyed by May 7,
2004. Appellant conceded that the summary judgment evidence
indicated that the contract had been completed, and his attorney’s
mere assertion that “sometimes builders have to come back out
and do things that they forgot to do as part of that contract” was
insufficient to demonstrate the existence of a disputed issue of fact.
As such, the record establishes that the contract was completed by
May 7, 2004. Thus, the ten-year statute of repose ran on May 7,
2014, rendering Appellant’s amended complaint time barred.
CONCLUSION
For the foregoing reasons, we hold that the statute of repose
of section 95.11(3)(c) applies and bars Appellant’s claim.
Therefore, we affirm the final summary judgment.
AFFIRMED.
OSTERHAUS and M.K. THOMAS, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Christopher W. Hewett of Law Office of Nooney & Roberts,
Jacksonville, for Appellant.
J. Logan Murphy, Marie A. Borland, and J. Rocco Cafaro of Hill,
Ward & Henderson, P.A., Tampa, for Appellee.
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