5D07-211 5D07-807 Allan and Conrad v. University of Central Florida

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D07-211

Case Date: 07/23/2007

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2007

ALLAN AND CONRAD, INC., RICHARD K. BARCANT, et a l., Petitioners v. Case No. 5D07-211 5D07-807

UNIVERSITY OF CENTRAL FLORIDA, etc., et al., Respondents. ________________________________/ Opinion filed July 27, 2007 Petition for Writ of Prohibition, Lawrence R. Kirkwood, Respondent Judge. Petition for Certiorari Review of Order from the Circuit Court for Orange County, Lawrence R. Kirkwood, Judge. Stephen M. Bull and Anthony Jaglal of Bull and Associates, P.A., Orlando, for Petitioners Allan and Conrad, Inc., Robert S. Conrad and Richard K. Barcant. John H. Dannecker and Temple Fett Kearns of Shutts & Bowen, LLP, Orlando, for Respondent University of Central Florida Board of Trustees. No appearance for Respondents VOA Associates, Inc., and Richard S. Rokicki.

EVANDER, J. In a single non-final order, the trial court denied petitioners' motion for summary judgment based on the statute of limitations, denied petitioners' motion for summary judgment based on the statute of repose, and granted respondent's motion for partial summary judgment based on the statute of repose. Petitioners seek a writ of prohibition to review the denial of their motion for summary judgment based on the statute of limitations. They also seek certiorari review of those portions of the trial court's order relating to their statute of repose defense. We consolidated these two actions. For the reasons set forth below, we dismiss the petition for writ of prohibition and deny the petition for writ of certiorari. Respondent, University of Central Florida's Board of Trustees ("UCF"), filed the underlying action against multiple defendants for what UCF contends are latent construction defects in one of the buildings constructed on UCF's campus. Petitioners are defendants in the pending negligence and breach of contract case. Petitioner

Robert Conrad was employed by Allan and Conrad, Inc., and served as the engineer of record for the project. Petitioner Richard Barcant was employed by Allan and Conrad, Inc., and served as the threshold inspector for the construction project. The project was completed in 1989 and the building was used by UCF for classrooms and offices for its College of Business Administration. UCF alleged that in 2002 it discovered that the brick veneer of the building had not been properly installed. UCF filed the underlying lawsuit on June 10, 2004.

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PETITION FOR WRIT OF PROHIBITION As an affirmative defense, petitioners allege that UCF's cause of action was barred by the statute of limitations. The applicable four-year statute of limitations reads as follows: An action founded on the design, planning, or construction of an improvement to real property, with the time running from 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 employer, whichever date is latest; except that, when the action involves a latent defect, the time runs from the time the defect is discovered or should have been discovered with the exercise of due diligence. . . .

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