Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT WESTPARK PRESERVE HOMEOWNERS ASSOCIATION, INC., a Florida nonprofit corporation, in its own right and as class representative, and as Assignee of STUART LEVINE, CYNTHIA FERENCZ, GERARD LAGUE, DONNA LAGUE, NOOR KHAN, PARVEEN KHAN, and KEVIN COOK, Assignors, Appellant, v. PULTE HOME CORPORATION, a foreign profit corporation d/b/a PULTE HOMES; G-SUS CONSTRUCTION INC.; HUGH MACDONALD CONSTRUCTION, INC; LAWSON INDUSTRIES, INC.; M.M.&A. CONSTRUCTION OF FLORIDA, INC.; RIKMAR CONSTRUCTION, INC.; SORCORP PAINTING INC.; STINKERBUG, INC. d/b/a PROGRESSIVE PAINTING CONTRACTORS, INC.; and SUTTON CONTRACTING SOLUTIONS, INC., Appellees. No. 2D21-2084 May 10, 2023 Appeal from the Circuit Court for Hillsborough County; Darren D. Farfante, Judge. Brian C. Tannenbaum and Alan E. Tannenbaum of Tannenbaum Lemole & Kleinberg, Sarasota, for Appellant. Garrett A. Tozier and James P. Terpening, III, of Shutts & Bowen LLP, Tampa; and John A. Dannecker of Shutts & Bowen, LLP, Orlando, for Appellee Pulte Home Corporation d/b/a Pulte Homes. Kellie A. Caggiano, Lauren M. Eliopoulos, Alexander R. Allred, and Randell H. Rowe, IV, of Moyer Law Group, St. Petersburg, for Appellee Lawson Industries, Inc. Carol M. Rooney of Butler Weihmuller Katz Craig LLP, Tampa, for Appellee Hugh MacDonald Construction, Inc. Geoffrey Lutz and Corey Etcheverry of Resnick & Louis, P.C., Orlando, for Appellee Sorcorp Painting Inc. Diane H. Tutt of Conroy Simberg, Hollywood, for Appellee Sutton Contracting Solutions, Inc. No appearance for remaining Appellees. CASANUEVA, Judge. The issue in this appeal involves the interpretation and application of Florida's statute of repose as set forth in section 95.11(3)(c), Florida Statutes (2018). Specifically, this court is asked to determine when the statute of repose began to run in this case. Westpark Preserve Homeowners Association, Inc. (Westpark), sued Pulte Home Corporation (Pulte) asserting claims relating to Pulte's construction of Westpark's townhomes. The trial court granted final summary judgment in favor of Pulte because it found that Florida's ten- year statute of repose bars Westpark's claims. We agree with the trial court and affirm. 2 I. FACTUAL BACKGROUND Pulte, while owner of the land, constructed townhomes in a development now known as Westpark Preserve. Pulte sold the townhomes to individual purchasers, the last sale occurring on June 12, 2009. Westpark is responsible for the repair and maintenance of the structural and exterior components of the townhomes and other common elements serving Westpark Preserve. Westpark filed an amended complaint against Pulte in which it alleged the following three claims: failure to construct its townhomes in compliance with the Florida Building Code, negligence, and vicarious liability for the negligence of Pulte's subcontractors.1 The original complaint was filed on February 12, 2019, and the amended complaint was filed on February 19, 2019. Pulte moved for summary judgment, arguing that Florida's ten-year statute of repose in section 95.11(3)(c) barred Westpark's lawsuit. The trial court agreed and entered final summary judgment in favor of Pulte. In its order, the court found that Pulte was the owner of all of the townhomes at Westpark Preserve when the certificate of occupancy was issued for each townhome. It further found that the last certificate of occupancy was issued on January 9, 2009, and that because Westpark failed to file its lawsuit against Pulte within ten years of the issuance of the last certificate of occupancy, its complaint against Pulte was barred by the statute of repose. II. STANDARD OF REVIEW The parties do not dispute the facts at issue on appeal. Because "the merits of this case only concern statutory interpretation, our review 1 Pulte filed a third-party complaint, and thereafter an amended complaint, against several of the subcontractors. 3 is de novo." Alachua County v. Watson, 333 So. 3d 162, 169 (Fla. 2022) (citing GTC, Inc. v. Edgar, 967 So. 2d 781, 785 (Fla. 2007)). III. DISCUSSION We begin our analysis by examining the purpose and operational function of a statute of repose. "A statute of repose . . . eliminates the underlying legal right; it 'precludes a right of action after a specified time . . . rather than establishing a time period within which the action must be brought measured from the point in time when the cause of action accrued.' " Nat'l Auto Serv. Ctrs., Inc. v. F/R 550, LLC, 192 So. 3d 498, 509 (Fla. 2d DCA 2016) (quoting Univ. of Miami v. Bogorff, 583 So. 2d 1000, 1003 (Fla. 1991), modified on other grounds by Tanner v. Hartog, 618 So. 2d 177, 181 (Fla. 1993)). Operationally, a statute of repose results in the cessation of a cause of action upon the conclusion of the repose period. Thus, a statute of repose establishes "an absolute bar to the filing of any claim after the expiration of the repose period and as being immune to the efforts of claimants to avoid it." Id. at 510. We next examine the language the Florida Legislature used in the statute of repose at issue. Section 95.11(3)(c) provides that any 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 of the contract or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest. (Emphasis added.) The trial court found that the time period for the statute of repose began to run when the certificates of occupancy were issued for the 4 townhomes. Westpark contends that this finding is incorrect because the latest date pursuant to the statute is "the date of actual possession by the owner," arguing that "owner" should be defined as the party who purchased the townhome from Pulte. In Westpark's interpretation of the statute, the definition of ownership is linked to the purchase of the property. We disagree with this interpretation of section 95.11(3)(c) because it is contrary to the clear language in the statute. When examining the statutory meaning of the language at issue, we must endeavor "to give effect to the Legislature's intent, looking first to the actual language used in the statute and its plain meaning." English v. State, 191 So. 3d 448, 450 (Fla. 2016) (quoting Trinidad v. Fla. Peninsula Ins. Co., 121 So. 3d 433, 439 (Fla. 2013)); see also State v. Waiters, 347 So. 3d 533, 536 (Fla. 2d DCA 2022). Courts must examine the "words in the context of the entire section rather than in isolation." State v. Lewars, 259 So. 3d 793, 797 (Fla. 2018) (citing Thompson v. State, 695 So. 2d 691, 692 (Fla. 1997)). "If the statutory language is clear and unambiguous, the court must recognize the statute's plain meaning and, therefore, need not employ any other rules of statutory construction." Id. (citing State v. Miller, 227 So. 3d 562, 563 (Fla. 2017)). "In such an instance, the statute's plain and ordinary meaning must control unless that meaning leads to a result that is unreasonable or clearly contrary to legislative intent." English, 191 So. 3d at 450 (first citing Polite v. State, 973 So. 2d 1107, 1111 (Fla. 2007); and then citing State v. Burris, 875 So. 2d 408, 410 (Fla. 2004)). It is not within the power of the judicial branch to change the statute's language. Instead, "[t]he legislature is the proper branch of government to alter the statutory text." Freeman as Tr. of Fiddlesticks Land Tr. U/A/D September 25, 1984 5 v. Berrin, 352 So. 3d 452, 455 (Fla. 2d DCA 2022) (citing Lewars, 259 So. 3d at 798). A. The language in section 95.11(3)(c) is clear and unambiguous. Although the term "owner" is commonly understood to be one who has the legal title or the right of possession, we note that the legislature has not defined the term in the statute. When the legislature has not defined a term in the statute, courts may "look to the dictionary in order to ascertain the plain and ordinary meaning of the term." Debaun v. State, 213 So. 3d 747, 751 (Fla. 2017). The term "owner" is defined as "[s]omeone who has the right to possess, use, and convey something; a person in whom one or more interests are vested." See Owner, Black's Law Dictionary (11th ed. 2019). In the present case, when construction was complete and the certificate of occupancy was issued for each townhome, Pulte was the "owner" of that townhome. It had the exclusive right to possession of the townhome, and it had the right to sell the townhome. If we were to accept Westpark's interpretation of section 95.11(3)(c), it would require us to add language to the statute providing that an action may be commenced within ten years after the date the property is sold after the improvement is made or construction is complete. If the legislature had intended for the period of repose to begin when the improved property is sold, it could have stated such. B. Even if section 95.11(3)(c) was ambiguous, rules of statutory construction do not support Westpark's argument. "When the statutory language is unclear or ambiguous, this Court applies rules of statutory construction to discern legislative intent." 6 English, 191 So. 3d at 450 (citing Polite, 973 So. 2d at 1111).2 In discerning the legislative intent of a statute, a court may properly consider "the evil to be corrected, the language, title, and history of its enactment, and the state of law already in existence on the statute." Parsons v. City of Jacksonville, 295 So. 3d 892, 897 (Fla. 1st DCA 2020) (quoting Fla. Dep't of Env't Prot. v. ContractPoint Fla. Parks, LLC, 986 So. 2d 1260, 1266 (Fla. 2008)). In American Liberty Insurance Co. v. West & Conyers, Architects & Engineers, 491 So. 2d 573, 574 (Fla. 2d DCA 1986), this court noted that the comprehensive preamble contained in section 95.11, Florida Statutes (1985), addressed the "evil to be corrected" by the statute by noting that there needs to be a time limit that a contractor, architect or engineer may be exposed to liability after an improvement to real property has been completed. Under Westpark's interpretation of section 95.11(3)(c), the possibility exists that a person or entity that acquires the real property by purchase starts the repose period anew. For example, if a homeowner made improvements to their property and sold the home decades afterward, Westpark's interpretation could result in liability for the contractor who worked on that home decades earlier. This result is contrary to the legislature's intent "to protect . . . contractors from stale claims." Snyder v. Wernecke, 813 So. 2d 213, 216 (Fla. 4th DCA 2002). 2 The path of examining the law sometimes is a journey "[f]rom the dark end of the street [t]o the bright side of the road." Van Morrison, Bright Side of the Road, Into the Music (Warner Bros. Records 1979). 7 Further, we observe that since this court issued its opinion in American Liberty Insurance Co., the legislature has reduced, not extended, the repose time period from twelve years to ten years. C. The statute of repose period began to run when the certificates of occupancy were issued. Having examined the statutory text, we next determine its application to the facts in the case before us. During the construction of the townhomes in Westpark Preserve, Pulte was the owner of the real property. When construction was completed and the county issued the certificate of occupancy for each and every townhome unit, Pulte was the owner in possession of the townhome. Thus, the latest date that the statute of repose would have begun to run pursuant to section 95.11(3)(c) is the date the certificate of occupancy was issued for the townhome. There is no dispute in the present case that all of the certificates of occupancy for the respective townhome units had issued on or before January 9, 2009. The present action was first filed in the circuit court on February 12, 2019. Thus, because Westpark failed to file its lawsuit against Pulte within ten years of the issuance of the latest certificate of occupancy, its complaint against Pulte was barred by section 95.11(3)(c). IV. CONCLUSION The trial court correctly entered final summary judgment in favor of Pulte because the statute of repose operated to bar the action filed by Westpark. Affirmed. NORTHCUTT, J., and CASE, JAMES R., ASSOCIATE SENIOR JUDGE, Concur. 8 Opinion subject to revision prior to official publication. 9