A recent Florida appellate court decision explored whether a limitations statute applied to an unlicensed contractor when the language of the statute only made reference to a licensed contractor. In Florida, “an action founded on the design, planning, or construction of an improvement to real property . . . between the professional engineer, registered architect, or licensed contractor”is subject to a four-year limitations period. Fla. Stat. Ann.
- 95.11(3)(c)(emphasis supplied). For breach of contract claims outside the scope of section 95.11(3)(c), a five-year limitations period generally applies. Fla. Stat. Ann. § 95.11(2)(b).
Pursuant to the recent decision in Brock v. Garner Window & Door Sales, Inc., the four-year limitations period also applies to an action against an unlicensed contractor. 187 So.3d 294 (Fla. 5th DCA 2016). In Brock, the homeowner’s cause of action against Garner Window & Door Sales had accrued more than four, but fewer than five, years before the homeowners filed suit. As such, which limitations period applied was critical to whether the homeowners could proceed. Garner, an unlicensed contractor, contended that the four-year limitations period time-barred the homeowners’ claim. Conversely, the homeowners argued that, according to the plain language of section 95.11(3)(c), the four-year period applied only to licensed contractors, and that therefore, the five-year limitations period of § 95.11(2)(b) applied.
The court first rejected the homeowners’ argument that the more general five-year limitations period of section 95.11(2)(b) applied since Florida courts have long refused its application to actions involving the improvement or construction of real property. In so holding, the court noted that the preamble to section 95.11 (3)(c) states that its intent was to limit the exposure of liability to architects, engineers and contractors.
Additionally, while the dissent in Brock argued that section 95.11(3)(c) makes specific reference to a licensed contractor and that courts must begin with the “actual language used in the statute,” the two-judge majority disagreed. They reasoned that the reference to “licensed contractor” is contained within the portion of the statute that addresses when the statute commences to run, not the types of actions to which it applies. As such, even an unlicensed contractor can raise the four-year statute of limitations as an affirmative defense to claims arising out of the contractor’s work.
Finally, the homeowners asserted that section 489.128 of the Florida Statutes precludes an unlicensed contractor from enforcing a contract. The court found that this statute does not preclude an unlicensed contractor from defending against an action to enforce a contract by the owner.
Though the argument in Brock supporting application of the five-year limitations period was at first-blush, perhaps, a winning argument, the Fifth District Court of Appeal’s opinion further solidified that this section will not only be strictly enforced, but that counsel should consider the section as seminal in determining the appropriate time to bring an action founded on construction.