James Harrell v. The Ryland Group, doing business as Ryland Homes, a foreign for-profit corporation

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D18-3728

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JAMES HARRELL,

Appellant,

v.

THE RYLAND GROUP, doing

business as Ryland Homes, a

foreign for-profit corporation,

Appellee.

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On appeal from the Circuit Court for Duval County.

Karen K. Cole, Judge.

August 13, 2019

LEWIS, J.

Appellant, James Harrell, appeals the final summary

judgment entered in favor of Appellee, The Ryland Group, Inc.,

d/b/a Ryland Homes, and raises two issues. Appellant argues that

the trial court erred in ruling that the statute of repose of section

95.11(3)(c), Florida Statutes (2016), applies. In the alternative, he

argues that Appellee failed to establish that the statute of repose

had run. We affirm.

BACKGROUND

In June 2016, Appellant filed against Appellee an amended

complaint for damages for injuries he allegedly sustained around

June 6, 2012, when an attic ladder he was climbing at a residential

home (“the home”) for purposes of repairing a leak collapsed

underneath him. 1 Appellant alleged that Appellee constructed

and sold the home prior to June 6, 2012, and was negligent “by

failing to ensure that the attic ladder was installed in a secure

manner with the appropriate hardware” and “by failing to verify

that the ladder was secure before selling the home.” Appellee filed

a motion to dismiss, arguing in part that Appellant’s claim was

barred by the ten-year statute of repose of section 95.11(3)(c),

Florida Statutes. The trial court found that the statute is

applicable because an attic ladder is an improvement to real

property, but denied the motion upon further finding that it was

not clear from the face of the complaint whether the suit was filed

before the expiration of the statute of repose.

Appellee then filed a motion for summary judgment, in which

it alleged and argued as follows. In July 2003, Appellee entered

into an agreement with the original owners, pursuant to which it

was to construct and sell the home to them. On or around April

30, 2004, the construction of the home was completed and a

certificate of occupancy was issued. By that date, final

performance had occurred and final payment had become due for

all the contracted-for services related to the construction of the

home. On or around May 7, 2004, Appellee executed a warranty

deed conveying title to the home to the original owners, who took

actual possession of the home. As found by the trial court, the

installation of the attic ladder was an improvement to real

property; thus, section 95.11(3)(c) applies. The issuance of the

certificate of occupancy, the conveyance of the home to the original

owners, and the recording of the warranty deed confirm that “all

construction activities on the Home were complete, and paid for,

and that the Original Owners took actual possession of the Home

on [May 7, 2004].” As such, any claims relating to the home

1 Appellant filed the original complaint in September 2015

against Chandler’s Trim, Inc., who he alleged negligently installed

the attic ladder without “the proper hardware, including adequate-

sized screws” and as to whom he subsequently dismissed the action

with prejudice.

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expired ten years later, on May 7, 2014, rendering Appellant’s

claim time barred.

Appellee filed several exhibits in support of its motion. A rider

to the agreement between Appellee and the original owners

reflects a contract date of July 29, 2003, and an estimated closing

date of March and that the contract included optional “[p]ull down

attic stairs” for $249. A certificate of occupancy was issued on

April 30, 2004, stating that the home “has been completed to the

best of our knowledge in compliance with all Building Code and

Zoning Regulations applicable therein.” A warranty deed reflects

that Appellee conveyed the home to the original owners on May 7,

2004. Appellee also filed the affidavit of William Berryhill, the

vice-president of the successor corporation by merger to Appellee,

in which Berryhill attested in part as follows:

5. . . . The issuance of the Certificate of Occupancy

indicates that construction of the Home was completed as

of April 30, 2004. I know this based on Ryland’s standard

building procedures and I can also attest to the fact that

Ryland’s standard building procedures regarding

completion of construction and application for the

Certificate of Occupancy are common to other production

home builders.

6. To be even more specific, issuance of the

Certificate of Occupancy on April 30, 2004 indicates that

as of that date final performance of all of the contracted-

for services provided by the professional engineer,

registered architect, or licensed contractor with respect to

the Home were complete. In other words, on April 30,

2004 all of the contract(s) . . . were complete with respect

to the Home.

....

8. Ryland’s procedures and protocols would not have

permitted the conveyance of the Home as signified by the

Warranty Deed without final completion of the

contract(s) . . . with respect to the Home and final

payment (i.e. closing) delivered to Ryland by the Original

Owners.

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9. The recording of the Warranty Deed on or about

May 7, 2004 provides final confirmation that all

construction activities on the Home were complete, and

paid for, and that the Original Owners took actual

possession of the Home on that date.

In his response, Appellant argued that section 95.11(3)(c) does

not apply because “the act of fastening a pre-assembled attic

ladder does not constitute design, planning or construction of an

improvement to real property” and even if the statute were

applicable, Appellee failed to establish that the alleged negligent

act occurred more than ten years before this action was filed

because it has not shown when the ladder was installed. At the

motion hearing, Appellant’s counsel argued that although the

summary judgment evidence indicates that the contract had been

completed, it “ignores the fact that sometimes builders have to

come back out and do things that they forgot to do as part of that

contract. And so, without knowing when this attic ladder was

installed, I don’t think [Appellee] can carry its burden of

establishing when the construction was abandoned or completed.”

The trial court entered final summary judgment for Appellee.

This appeal followed.

ANALYSIS

The party moving for summary judgment must establish the

absence of any genuine issue of material fact and its entitlement

to judgment as a matter of law. Bradley v. Fort Walton Beach Med.

Ctr., Inc., 260 So. 3d 1178, 1180 (Fla. 1st DCA 2018). When the

movant satisfies this initial burden, the burden shifts to the

opposing party to demonstrate the existence of disputed issues of

fact by presenting evidence of countervailing facts or justifiable

inferences from the facts presented. Id. A mere assertion that an

issue exists does not suffice; “general allegations and legal

argument do not constitute evidence of disputed issues of material

fact.” Id. The trial court must draw every possible inference in

favor of the nonmoving party and may grant the motion only if the

facts are so crystallized that nothing remains but questions of law.

Convergent Techs., Inc. v. Stone, 257 So. 3d 161, 166 (Fla. 1st DCA

2018). An order granting summary judgment is reviewed de novo.

Id.

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Likewise, an issue of statutory interpretation is reviewed de

novo. Whitney Bank v. Grant, 223 So. 3d 476, 479 (Fla. 1st DCA

2017). The polestar of statutory interpretation is legislative

intent, which is to be determined by first looking at the actual

language used in the statute. Searcy, Denney, Scarola, Barnhart

& Shipley v. State, 209 So. 3d 1181, 1189 (Fla. 2017). Where the

Legislature did not define the words in the statute, the language

is to be given its plain and ordinary meaning, which may be

derived from a dictionary. Debaun v. State, 213 So. 3d 747, 751

(Fla. 2017). If the statutory language is clear and unambiguous,

the court may not resort to the rules of statutory construction and

the statute must be given its plain and obvious meaning, unless it

would lead to an unreasonable result or a result clearly contrary

to legislative intent. Searcy, Denney, Scarola, Barnhart & Shipley,

209 So. 3d at 1189 (explaining that the court must give effect to all

parts of the statute and avoid readings that would render a part

thereof meaningless, and the court may not construe a statute in

a way that would extend, modify, or limit its express terms or its

reasonable or obvious implications).

Section 95.11(3)(c), Florida Statutes (2016), provides in

pertinent part as follows:

An 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 or

termination of the contract between the professional

engineer, registered architect, or licensed contractor and

his or her employer, whichever date is latest.[ 2]

2 The current version of the statute has the following

additional provisions:

With respect to actions founded on the design, planning,

or construction of an improvement to real property, if

such construction is performed pursuant to a duly issued

building permit and if a local enforcement agency, state

enforcement agency, or special inspector, as those terms

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The legislative intent behind section 95.11(3)(c) was to protect

engineers, architects, and contractors from stale claims. Snyder v.

Wernecke, 813 So. 2d 213, 216 (Fla. 4th DCA 2002).

As such, the applicability of section 95.11(3)(c) turns on

whether Appellant’s action is founded on the “construction of an

improvement to real property.” We refer to the dictionary to

ascertain the plain and ordinary meaning of the words

“construction” and “improvement” because the Legislature did not

define them. “Construction” is defined as “[t]he act of building by

combining or arranging parts or elements; the thing so built.”

Construction, BLACK’S LAW DICTIONARY (11th ed. 2019).

“Improvement” is defined as “[a]n addition to property, usu. real

estate, whether permanent or not; esp., one that increases its value

or utility or that enhances its appearance.” Improvement, BLACK’S

LAW DICTIONARY (11th ed. 2019). 3 Cf. Hillsboro Island House

Condo. Apartments, Inc. v. Town of Hillsboro Beach, 263 So. 2d

209, 213 (Fla. 1972) (finding that beach erosion projects were

“capital improvements” for the purpose of the town charter and

relying on the fourth edition of Black’s Law Dictionary defining

“improvement” as “[a] valuable addition made to property (usually

real estate) or an amelioration in its condition, amounting to more

are defined in s. 553.71, has issued a final certificate of

occupancy or certificate of completion, then as to the

construction which is within the scope of such building

permit and certificate, the correction of defects to

completed work or repair of completed work, whether

performed under warranty or otherwise, does not extend

the period of time within which an action must be

commenced. Completion of the contract means the later

of the date of final performance of all the contracted

services or the date that final payment for such services

becomes due without regard to the date final payment is

made.

§ 95.11(3)(c), Fla. Stat. (2018).

3 These terms were defined in the same manner in the

previous edition. See Construction; Improvement, BLACK’S LAW

DICTIONARY (10th ed. 2014).

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than mere repairs or replacement of waste, costing labor or capital,

and intended to enhance its value, beauty or utility or to adapt it

for new or further purposes”).

Under the current definition of “improvement,” the attic

ladder need not be permanent and is not required to increase the

value and/or utility of the property. See Improvement, BLACK’S

LAW DICTIONARY (11th ed. 2019) (“An addition to property, usu.

real estate, whether permanent or not; esp., one that increases its

value or utility or that enhances its appearance.”). The attic ladder

is unquestionably an addition to real property, and it provides

added utility. While the attic could be accessed absent the pull-

down stairs with a household ladder, the pull-down stairs provide

convenience as they obliviate the need to have a standalone ladder

tall enough for attic access that one then has to carry to and

properly place under the attic opening. Nothing in the statutory

language or dictionary definition requires the addition to

significantly increase the value or utility of the property or to be

essential to the property. Given such, the attic ladder meets the

current definition of improvement.

We note that the attic ladder also meets the prior definition of

improvement because it is an addition to property, it amounts to

more than mere repair or replacement of waste, it cost labor and

capital given that it required installation and cost $249, and we

cannot conceive of a reason why the original owners would have

opted to pay for it other than to intend to enhance the value or

utility of the property. See Improvement, BLACK’S LAW

DICTIONARY (4th ed. 1969) (“A valuable addition made to property

(usually real estate) or an amelioration in its condition, amounting

to more than mere repairs or replacement of waste, costing labor

or capital, and intended to enhance its value, beauty or utility or

to adapt it for new or further purposes.”).

Case law supports our conclusion that the attic ladder

constitutes improvement to real property. For example, in Plaza

v. Fisher Development, Inc., 971 So. 2d 918, 924 (Fla. 3d DCA

2007), the Third District concluded that the store’s conveyor

system was a structural improvement to real property, not a

product to which strict liability would apply. The court noted that

the conveyor system was installed when the store was being built

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and reasoned that the conveyor is “‘an integral part of’ Pottery

Barn’s operation, in that the subject conveyor allowed items sold

to customers to travel easily from the second floor storage area to

the first floor retail area, and the conveyor system is affixed to the

real property, thereby adding value to the property.” Id.; see also

Simmons v. Rave Motion Pictures Pensacola, L.L.C., 197 So. 3d

644, 645, 647 (Fla. 1st DCA 2016) (affirming the judgment against

the appellant, who was injured when a movie theater seat broke

underneath him due to a failure in the welding in its bottom, upon

concluding that the seating system was a structural improvement

to real property, not a product, because “[the appellees] are not the

manufacturer of the theater seating system. There is also evidence

that the seating system is an integral part of the movie theatre’s

operation, as it was installed as part of the construction of the

theater, and the entire seating system was bolted to the floor.

Moreover, . . . there is no evidence that either the seat bottom or,

more importantly, the seating system could be disassembled and

resold.”); Bernard Schoninger Shopping Ctrs., Ltd. v. J.P.S.

Elastomerics, Corp., 102 F.3d 1173, 1175 (11th Cir. 1997) (finding

section 95.11(3)(c) applicable to the appellant’s claims stemming

from a leaky roof the appellee had installed because “[t]he

installation of over 100,000 square feet of membrane and

fiberboard [on top of the existing roof] at a cost of tens of thousands

of dollars is a ‘valuable addition’ to the Kmart building, and it

therefore qualifies as an ‘improvement’” (citation omitted)). Cf.

Dominguez v. Hayward Indus., Inc., 201 So. 3d 100 (Fla. 3d DCA

2015) (concluding that a pool filter, which is a component part of

the swimming pool, does not constitute an improvement to real

property under section 95.031(2)(b), Florida Statutes, which sets

forth a statute of repose for products liability claims and exempts

“improvements to real property, including elevators and

escalators”).

In Collins v. Trinity Industries, Inc., 861 F.2d 1364, 1364-65

(5th Cir. 1988), the Fifth Circuit determined that the appellant’s

claims were barred by the applicable statute of limitations, which

applied to claims “arising out of the deficiency in the design,

planning, supervision or observation of construction, or

construction of an improvement to real property,” because the

caged ladder from which he fell at the electrical generating facility

where he worked was an improvement to real property. The court

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noted that the ladder was field-bolted or welded to the structure,

and it “was designed as part of the overall project and was used

like a stair or elevator for ordinary movement around the plant.”

Id. at 1365. The court reasoned:

[T]he term improvement must be given its customary

meaning. Common definitions of the term generally refer

to a permanent addition that increases the value of the

property and makes it more useful. . . . The caged ladder

in issue was an integral part of the building, providing a

means of moving from one level to another. The ladder

was permanent affixed although, as the Mississippi

Supreme Court held, that feature is not required. The

ladder also added value to the refinery.

Id.; see also Tr. Co. Bank v. U.S. Gypsum Co., 950 F.2d 1144, 1152

(5th Cir. 1992) (finding that “‘asbestos-containing’ fireproofing

materials applied to the steel support structure and structural

ceiling of the bank building” are improvements to real property

because “[t]here is little doubt that the fireproofing materials in

this case increased the value of the bank building and made it more

useful”).

Similarly, in Diana v. Russo Development Corporation, 799

A.2d 689, 691 (N.J. Super. Ct. App. Div. 2002), the court held that

“a fixed vertical steel ladder attached to a concrete block wall

leading to a [] roof hatch” constituted an improvement to real

property for the purposes of the statute of repose. After noting that

the hatch and ladder constituted a single system, were

incorporated into the building, and served no purpose other than

to provide access to the building’s roof and that the fact that it was

a mass-produced item did not render the statute of repose

inapplicable because “[m]uch construction in a home involves so

called ‘mass-produced items,’” the court explained:

The hatch and ladder system appears to have been

installed during the construction of the building and was

not added later. The system provides a means of moving

from the leased space to the roof where the air

conditioning and heating equipment had been installed. .

..

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Hatch covers have also been found to be

improvements to real property where they were designed

to make the property more useful . . . .

While the ladder and hatch system could be removed

from the wall and roof relatively easily, there was no

indication that the structure was not designed to be a

permanent feature of the leased warehouse space. Today,

very few structures can be considered permanent, in the

sense that the structure cannot be removed. . . .

Plaintiff argues that there was no proof that the

hatch and ladder would increase the property's tax

assessment value . . . . However, value is not an exact

science but rather relative. Here, the claimed

improvement must create value to someone utilizing the

particular improvement. It need not in all cases affect the

tax assessment value. To us, it is not significant that a

ladder could easily reach the roof from outside this two-

story structure. For anyone who must be able to ascend

the roof in all types of weather conditions, the inside

ladder and hatch would constitute some value and

enhance the property from the user's perspective.

Clearly, labor and money were needed to install this

feature, which was neither a repair nor a replacement.

The record reflects that the roof hatch cost $350 in 1985

and after the accident to correct the backward roof hatch

alignment the cost was $250.

Thus, we conclude that the ladder and hatch system

enhanced the use of the property and cost labor and

money to build. This feature was part of the original

property and did not constitute a repair or replacement.

It also appears to be a permanent feature of the building

and adds some value to the property.

Id. at 693-96; see also Cherilus v. Fed. Exp., 87 A.3d 269, 278 (N.J.

Super. Ct. App. Div. 2014) (finding that a torklift that “facilitated

movement of cargo containers and enhanced the functioning of the

warehouse facility,” “was designed to be installed as an integral

feature of the property,” and “was intended to be a permanent

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fixture of the building” constituted an improvement to real

property); Garrett v. J.D. Specialties, Inc., 2:09-CV-195, 2010 WL

4791885, at *4 (E.D. Tenn. Nov. 18, 2010) (concluding that the

ladder that was attached to the outside of the building and

provided access to the roof was an improvement to real property);

Homrighausen by Homrighausen v. Westinghouse Elec. Corp., 832

F. Supp. 903, 906 (E.D. Pa. 1993) (finding that escalators are

improvements to real property because other forms of vertical

transportation, such as elevators and ski lifts, have been deemed

improvements and “[l]ike an elevator, an escalator’s purpose is to

provide effortless access between floors of the building. As such, it

is a valuable addition to the building in which it is attached.”).

Like the items in the foregoing cases, the attic ladder at issue

here was installed as part of the construction of the home, required

labor and money, made the property more useful/valuable in that

it provides a more convenient means of access to another level, was

not mere repair or replacement, and was affixed to the attic,

making it an integral part of the home. Having concluded that the

attic ladder constitutes an improvement to real property, the

question remains whether Appellant’s claim arises from the

construction of that improvement.

It is undisputed that the attic ladder was pre-assembled and

Appellee’s only involvement with the ladder was its installation.

Although Appellee did not construct the ladder itself, we find that

the action is founded on the construction of improvement to real

property because Appellant’s claim is that Appellee negligently

failed to ensure the secure installation of the ladder with the

proper hardware (not that the ladder itself was defective). That is,

the action is based on Appellee’s act of building by combining the

attic ladder with the attic, which it undisputedly constructed. See

Construction, BLACK’S LAW DICTIONARY (11th ed. 2019) (“The act

of building by combining or arranging parts or elements; the thing

so built.”). Therefore, we conclude that Appellant’s action is

founded on the construction of improvement to real property,

rendering section 95.11(3)(c) applicable.

Lastly, we must determine whether the ten-year statute of

repose of section 95.11(3)(c) had run. The statute requires the

action to be commenced within ten years after the date of: (1)

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actual possession by the owner, (2) issuance of a certificate of

occupancy, (3) abandonment of the construction if not completed,

or (4) completion or termination of the contract, whichever is

latest. § 95.11(3)(c), Fla. Stat. Appellant does not dispute that the

original owners took possession of the home on May 7, 2004, as

reflected by the warranty deed, that the certificate of occupancy

was issued on April 30, 2004, and that the construction was not

abandoned. The record evidence shows that the attic ladder was a

selected option for the construction of the home and the certificate

of occupancy was issued and the home was conveyed by May 7,

2004. Appellant conceded that the summary judgment evidence

indicated that the contract had been completed, and his attorney’s

mere assertion that “sometimes builders have to come back out

and do things that they forgot to do as part of that contract” was

insufficient to demonstrate the existence of a disputed issue of fact.

As such, the record establishes that the contract was completed by

May 7, 2004. Thus, the ten-year statute of repose ran on May 7,

2014, rendering Appellant’s amended complaint time barred.

CONCLUSION

For the foregoing reasons, we hold that the statute of repose

of section 95.11(3)(c) applies and bars Appellant’s claim.

Therefore, we affirm the final summary judgment.

AFFIRMED.

OSTERHAUS and M.K. THOMAS, JJ., concur.

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Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

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Christopher W. Hewett of Law Office of Nooney & Roberts,

Jacksonville, for Appellant.

J. Logan Murphy, Marie A. Borland, and J. Rocco Cafaro of Hill,

Ward & Henderson, P.A., Tampa, for Appellee.

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