Hummer v. Adams Homes of Northwest Florida, Inc.
2016 Fla. App. LEXIS 2853
| Fla. Dist. Ct. App. | 2016Background
- Hummer purchased a new home in July 2007; Adams Homes was general contractor and Nu Way Drywall was drywall subcontractor. The drywall was alleged to be defective.
- Hummer knew the home had drywall problems by mid-2009; his complaint and attached timelines show ER visits and hospitalizations in 2009 related to breathing/chest/abdominal pain.
- He filed a pro se complaint in June 2014 asserting six counts (negligence, strict liability, FDUTPA, and three implied-warranty theories), seeking damages for property damage and personal injuries.
- Defendants moved to dismiss, arguing all claims were time-barred by applicable four-year statutes of limitations; the trial court dismissed the complaint without leave to amend.
- The appellate majority affirmed dismissal as to property-damage claims (accrual undisputed) but reversed as to personal-injury claims, holding the complaint did not conclusively show the limitations bar and remanding with leave to amend personal-injury theories.
- Judge Lucas concurred in part and dissented in part, arguing the complaint and its exhibits plainly alleged accrual in 2009 and thus both property-damage and personal-injury claims were time-barred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether property-damage claims are barred by statutes of limitations | Hummer sought equitable tolling/delayed discovery | Defendants: claims accrued by mid-2009 and are barred | Affirmed: property-damage claims barred by four-year statutes |
| Whether personal-injury claims are barred by statutes of limitations | Hummer: accrual date not conclusively established; equitable tolling/delay may apply | Defendants: complaint and exhibits show 2009 medical treatment, so claims are time-barred | Reversed as to personal-injury claims; complaint does not conclusively show the bar; remand with leave to amend |
| Standard for dismissal on statute-of-limitations ground | Hummer: pro se pleading should not be dismissed where accrual is unclear | Defendants: face of complaint shows bar | Court: dismissal on affirmative defense allowed only when complaint "affirmatively and clearly" shows conclusive applicability; extraordinary circumstances required to dismiss |
| Remedy on remand | N/A | N/A | Trial court to enter new dismissal order leaving Hummer free to amend limited to personal-injury theories; now represented by counsel, he may clarify accrual allegations |
Key Cases Cited
- Alexander Hamilton Corp. v. Leeson, 508 So.2d 513 (Fla. 4th DCA 1987) (motion to dismiss under statute of limitations appropriate only when complaint affirmatively and clearly shows the defense applies)
- Wishnatzki v. Coffman Constr., Inc., 884 So.2d 282 (Fla. 2d DCA 2004) (statute-of-limitations dismissal appropriate only in extraordinary circumstances where pleadings conclusively establish the bar)
- Hearndon v. Graham, 767 So.2d 1179 (Fla. 2000) (discussing delayed discovery rule for accrual of latent-defect claims)
- Meadows Cmty. Ass’n v. Russell-Tutty, 928 So.2d 1276 (Fla. 2d DCA 2006) (pleadings must be accepted as true on motion to dismiss)
- City of Riviera Beach v. Reed, 987 So.2d 168 (Fla. 4th DCA 2008) (statute-of-limitations dismissal reserved for when it is inescapably clear from the complaint that suit is time-barred)
- Roehner v. Atl. Coast Dev. Corp., 356 So.2d 1296 (Fla. 4th DCA 1978) (same point on limitations dismissal standard)
- Kelley v. Sch. Bd. of Seminole Cty., 435 So.2d 804 (Fla. 1983) (accrual under delayed discovery commences when plaintiff knows or reasonably should know of the cause of action)