JOEL & MARCIA HOCHBERG V. CARTER PAINTING, ET AL.

SUPREME COURT CASES

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State: Florida

Court: Florida Third District Court

Docket No: 10-2386

Case Date: 06/08/2011

Preview:Third District Court of Appeal
State of Florida, January Term, A.D. 2011
Opinion filed June 8, 2011. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D10-2386 Lower Tribunal No. 08-42731 ________________

Joel and Marcia Hochberg,
Appellants, vs.

Thomas Carter Painting, Inc., The Place for Tile, Inc., Karlsen Corporation, d/b/a Window Professionals and General Caulking & Coatings Co., Inc.,
Appellees. An Appeal from the Circuit Court for Miami-Dade County, Pedro P. Echarte, Jr., Judge. Vezina, Lawrence & Piscitelli (Fort Lauderdale), and Mike Piscitelli, and Emily A. Troesch, for appellants. Gene D. Lipscher (Jupiter); Paxton & Smith, and Michele I. Nelson (West Palm Beach); Lydecker Diaz, and Onier Llopiz, Joan Carlos Wizel and Stephanie Pidermann; Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow, & Schefer, and Shannon P. McKenna (Hollywood), and Hinda Klein, for appellees. Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge. EMAS, J.

Joel and Marcia Hochberg ("the Hochbergs") appeal four final summary judgment orders entered individually in favor of The Place for Tile, Inc. ("The Place for Tile"), Thomas Carter Painting, Inc. ("Thomas Carter Painting"), Karlsen Corp. d/b/a Window Professionals ("Window Professionals"), and General Caulking & Coatings, Co. ("General Caulking") (collectively referred to as "appellees" or "subcontractors"). The trial court granted each appellee's motion for summary judgment based upon its finding that the statute of limitations had expired prior to the Hochbergs filing a complaint against the appellees. We affirm. In 2000, the Hochbergs hired a general contractor, Miller Construction Company ("Miller"), to construct their new home. Miller then hired several

subcontractors, including appellees, to undertake certain aspects of the construction. Sometime in 20031 the Hochbergs attempted to move into their new home, but were unable to spend even one night because an overwhelming smell of mold in the home triggered a severe reaction in Mrs. Hochberg. The Hochbergs also discovered damp carpeting in the master bedroom. They immediately

contacted Miller and hired a mold remediation company to investigate. The mold remediation company found "significant mold" and "cracking in the finishes on the

The record does not establish precisely when in 2003 the Hochbergs attempted to move into the new home. However, the record establishes that, in September of 2003, the Hochbergs sent a letter to Miller pointing out deficiencies in the construction of the home, including cracks and hollow areas in parts of the floor. 2

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walls."

Several weeks later, following a storm, the Hochbergs discovered

significant water intrusion in the new home. On November 25, 2003, the Hochbergs hired an engineer to address concerns they had with the deficiencies in the construction of the house, including the issue of water intrusion. The engineer's preliminary report, dated February 4, 2004, identified water intrusion in several locations within the home. Shortly thereafter, the Hochbergs served Miller with a Demand for Arbitration. On March 25, 2004, they served Miller with a Supplement to Demand for Arbitration. In that Supplement, the Hochbergs alleged that Miller breached the construction contract. The Supplement alleged: "Clearly, as is evidenced by the dearth of quality in the work performed by and on behalf of the Contractor [Miller], the pool of laborers utilized for the Hochbergs' home was not as skilled as initially represented, nor were they supervised by the Contractor to ensure that the work that was performed was in keeping with the Contract Documents." The Supplement delineated twenty specific items constituting construction deficiencies; the relevant items for our purposes included: "Water intrusion into various areas of the home"; "Improper installation and damage to marble in the Master Bedroom"; "Improper installation and cracking of pavers and stone";

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"Stone exterior fa

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