SALTPONDS V. McCOY

State: Florida

Court: Florida Third District Court

Docket No: 07-1360

Case Date: 12/19/2007

Preview:Third District Court of Appeal
State of Florida, July Term, A.D. 2007
Opinion filed December 19, 2007. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D07-1360 Lower Tribunal Nos. 2004-CA-250-K, 44-2006-CA-864-K ________________

Saltponds Condominium Association, Inc.,
Appellant, vs.

Charles McCoy,
Appellee.

An Appeal from the Circuit Court for Monroe County, David J. Audlin, Jr., Judge. McConnell Lipton LLP and H. Hugh McConnell, for appellant. Claudia Medina Thomas, for appellee.

Before COPE, GREEN, and SALTER, JJ. COPE, J.

Saltponds Condominium Association, Inc. appeals an order of dismissal. We conclude that the statute of limitations defense was not sufficiently clear on the face of the amended complaint so as to allow dismissal. The Association brought suit seeking damages for alleged construction defects in its condominium buildings. Defendant-appellee Charles McCoy was the architect. 1 The amended complaint alleged that turnover of control from the developer to the Association occurred on August 1, 2002. The Association attached to its complaint a 2005 report from an engineering firm identifying various defects in the condominium buildings. The amended complaint asserted that the building defects "are not readily recognizable by persons who lack special knowledge or training, or are hidden by components or finishes, and are latent." The Association said that it had complied with chapter 558, Florida Statutes, by serving all defendants with the report and giving them an opportunity to inspect and correct the defects. The architect moved to dismiss, arguing that the lawsuit was barred by the statute of limitations. He maintained that this could be determined from the face of the report attached to the amended complaint. The architect acknowledged that the amended complaint alleged the defects to be latent, but maintained that the engineering report showed the defects to be patent, not latent. He contended that

1

The Association also sued the developer and general contractor. 2

since the report was attached to the amended complaint, it negated the Association's allegations that the defects were latent. Based on the premise that the defects were patent, the architect then argued that the limitation period began to run on the date of turnover of the condominium to the Association. See

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