BANNER SUPPLY V. HARRELL & HARRELL, ET AL.,

State: Florida

Court: Florida Third District Court

Docket No: 09-2165

Case Date: 12/23/2009

Preview:Third District Court of Appeal
State of Florida, July Term, A.D. 2009
Opinion filed December 23, 2009. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D09-2165 Lower Tribunal No. 09-8401 ________________

Banner Supply Co.,
Petitioner, vs.

Jason Harrell and Melissa Harrell, etc.,
Respondents.

On Petition for a Writ of Certiorari to the Circuit Court for Miami-Dade County, Gill S. Freeman, Judge. Adorno & Yoss, and Jack R. Reiter and Jordan S. Kosches, for petitioner. Podhurst Orseck, and Stephen F. Rosenthal, Robert C. Josefsberg, Victor M. Diaz, Jr., and Alexander Rundlet; Mark Blumstein; Higer Lichter & Givner, and David H. Lichter and J. Joseph Givner, for respondents. Before SUAREZ and SALTER, JJ., and SCHWARTZ, Senior Judge. SUAREZ, J. 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 Harrells 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

The Harrells served the initial Complaint on several entities, alleging breach of contract, express warranty and habitability, violation of the Magnuson-Moss Warranty Act and Florida's Deceptive and Unfair Trade Practices Act, strict product liability, and negligence. Banner, one of the named defendants, is the supplier of the allegedly defective drywall. See

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