United States Court of Appeals,
Eleventh Circuit.
No. 95-4636.
BERNARD SCHONINGER SHOPPING CENTERS, LTD., a successor to
Schoninger Management Corporation, Plaintiff-Appellant,
v.
J.P.S. ELASTOMERICS, CORP., successor to J.P. Stevens & Co.,
Inc., Defendant-Appellee.
Jan. 6, 1997.
Appeal from the United States District Court for the Southern
District of Florida. (No. 93-739-CIV-EBD), Edward B. Davis, Judge.
Before TJOFLAT, Circuit Judge, and RONEY and PHILLIPS*, Senior
Circuit Judges.
TJOFLAT, Circuit Judge:
The controversy in this diversity suit stems from a leaky
roof. The owner of the porous building seeks money damages against
the installer of the roof under several legal theories. The
district court held the owner's claims barred on the ground that
the applicable statute of limitations had run. The district court
entered summary judgment for the installer, and the owner appeals.
We affirm.
I.
Bernard Schoninger Shopping Centers, Ltd., the appellant, is
a limited partnership organized under the laws of Florida.1
Schoninger owns and manages ten shopping centers, one of which
*
Honorable J. Dickson Phillips, Jr., Senior U.S. Circuit
Judge for the Fourth Circuit, sitting by designation.
1
Schoninger's predecessor, Schoninger Management
Corporation, Inc., was the owner of the subject building at the
time the roof was installed. We refer to both the corporation
and the limited partnership hereinafter as "Schoninger."
includes a Kmart located in Bradenton, Florida. In July 1984,
Schoninger decided to refurbish the roof of the Kmart building, a
roof with an area greater than 100,000 square feet. Schoninger
sought bids for the project and chose J.P. Stevens & Company, Inc.,
the predecessor of the appellee, J.P.S. Elastomerics, Inc.2 JPS is
a Delaware corporation which manufactures and sells roofing
products, including a synthetic material called "Hipalon Hi-Tuff
Membrane" (the "membrane"). When unrolled, attached, and sealed to
an existing roof, the membrane resembles a large plastic sheet that
repels water from the roof. In this case, the membrane covers the
original Kmart roof, which was not removed. The original roof
consists of a one-half-inch, gypsumboard deck with tar and gravel
on top and fiberglass insulation underneath.
The employees of JPS themselves do not install the membrane.
Instead, JPS maintains standard agreements with various
subcontractors, or "applicators," to install the membrane. From a
list of these authorized applicators, Schoninger chose General
Roofing Industries, Inc. ("GRI") to attach the membrane to the
Kmart roof. GRI then contracted with Schoninger to do the work. 3
GRI used an installation manual supplied by JPS to purchase the
supplies required to complete the project. These supplies included
2
J.P. Stevens & Company, Inc. and J.P.S. Elastomerics, Inc.
are referred to hereinafter as "JPS."
3
3 As we indicate in the text infra, the record does not
contain these parties' agreements with one another. Apparently,
their agreements were oral. The parties appear to have exchanged
correspondence in reaching their agreements, but such
correspondence is not in the record. All that is in the record
is the written warranty JPS issued to Schoninger on September 18,
1984.
an unspecified amount of JPS' membrane, a large quantity of
one-half-inch-thick wood fiberboard to be placed under the
membrane, and several thousand "toggle bolts" to secure the
membrane and fiberboard to the Kmart roof.4
In early September 1984, GRI notified JPS that GRI had
completed its work on the Kmart roof. On September 7, 1984, an
employee of JPS, Paul Dillenbeck, met with an employee of GRI, Dan
Caldwell, and an employee of Olympic Manufacturing Group, Inc.,5
Stan Choiniere, to inspect the completed work. In a report dated
the same day, Choiniere described defects in the installation of
the toggle bolts. Schoninger did not receive a copy of Choiniere's
report, but JPS and GRI apparently did.
Dillenbeck also filed an inspection report, dated September 8,
1984 ("Dillenbeck's first report"), which characterized GRI's work
as entirely good. Despite corporate policy to the contrary, JPS
sent a copy of Dillenbeck's first report to Schoninger. In a
separate report dated September 10, 1984 ("Dillenbeck's second
report"), however, Dillenbeck listed five defects in the work done
on the Kmart roof. Attached to Dillenbeck's second report was a
"punch list" of flaws that required the attention of GRI; the
punch list bears the signature of GRI's Dan Caldwell. Schoninger
never received Dillenbeck's second report. Although the Choiniere
report and Dillenbeck's second report catalogued several
deficiencies in the Kmart roof, Dillenbeck's superiors at JPS
4
A toggle bolt is a long metal bolt with a "V"-shaped,
spring-loaded catch at one end.
5
Olympic Manufacturing Group, Inc. made the toggle bolts
used to re-roof the Kmart building.
nevertheless issued to Schoninger a ten-year, written warranty for
the roof, effective September 18, 1984.6
On September 29, 1984, the tenant of the Kmart building
reported leaks in the newly completed roof. Schoninger contacted
GRI, which performed repairs. The leaks persisted, however, and
the warranty department of JPS became involved in coordinating the
repair efforts. The roof continued to leak. On August 5, 1988,
JPS terminated GRI as the subcontractor responsible for repairing
the Kmart roof. JPS reassigned the task to National Skyway
Roofing, Inc. Shortly thereafter, however, JPS terminated National
Skyway and reassigned the work to Atlantic Roofing, Inc., which
continued to attempt to repair the Kmart roof. The roof never
stopped leaking. In September 1991, JPS informed Schoninger that,
due to water damage, at least one portion of the original roof
would require replacement.
Schoninger filed this complaint on March 18, 1993, in the
Circuit Court of Dade County, Florida. The complaint alleged seven
claims, including the following: fraud, negligent
misrepresentation, breach of express warranty, breach of implied
warranty of fitness for particular purpose, breach of implied
warranty of merchantability, and negligence in the design,
6
The written warranty provides as follows:
"[JPS] warrants to [Schoninger] ... that subject to the
terms, conditions, and limitations stated herein, [JPS]
will repair any leaks in the Hi-Tuff Roofing System
("Roofing System'), but not to exceed [Schoninger's]
original cost of the installed roof over the life of
this Warranty, installed by a[JPS] Authorized Roofing
Applicator for a period of -TEN- years commencing with
the date of the final inspection and acceptance of the
Roofing System installation by [JPS]...."
manufacture, and installation of the roofing system.7 On April 20,
1993, JPS removed the case to the United States District Court for
the Southern District of Florida pursuant to 28 U.S.C. § 1441
(1994).8
After more than eighteen months of discovery, JPS moved for
summary judgment, contending that Schoninger's claims were barred
by Fla. Stat. ch. 95.11(3)(c) (1995).9 On April 13, 1995, the
district court granted the motion, holding that Schoninger's claims
were time-barred. This appeal followed.
II.
Our review of a district court's grant of summary judgment is
de novo. Duke v. Massey, 87 F.3d 1226, 1230 (11th Cir.1996). We
7
For reasons that are not apparent from the record or the
briefs on appeal, Schoninger did not allege a claim based on the
ten-year, written warranty that JPS had given to Schoninger on
September 18, 1984.
8
The district court had removal jurisdiction: Schoninger
and JPS are citizens of different states, and the amount in
controversy—although never authoritatively calculated by the
parties—clearly exceeds $50,000, exclusive of interest and costs.
See 28 U.S.C. § 1332(a)(1) (1995). Based on his experience with
similar roofs, the consultant hired by the plaintiff roughly
estimated the replacement cost of the damaged portion of the
Kmart roof to be $245,000. We have no reason to doubt the
validity of this approximation.
9
Simultaneously, Schoninger moved the district court for
leave to amend its complaint for the purpose of adding
allegations of fact to its claim of fraud. The district court
denied Schoninger's motion.
In this appeal, Schoninger contends that the court
abused its discretion; it asks that we remand the case for
further proceedings on its fraud claim. We find no abuse of
discretion. Schoninger's motion came late in the
case—twelve days before the discovery cut-off date and one
month before the parties' pretrial stipulation was to be
filed. The additional factual allegations Schoninger
presented would not have saved Schoninger's fraud claim from
dismissal on summary judgment.
view in the light most favorable to the plaintiff the evidence
bearing on the issue of when its cause of action arose. We give
the plaintiff the benefit of all reasonable inferences on this
point. Florida law determines when the applicable statute of
limitations began to run in this case, but federal law determines
whether the evidence supporting this starting date suffices to
entitle the defendant to summary judgment. See Hutcherson v.
Progressive Corp., 984 F.2d 1152, 1155 (11th Cir.1993).
III.
A.
Schoninger argues that the district court erred in applying
the four-year statute of limitations contained in Fla. Stat. ch.
95.11(3)(c) to each of Schoninger's claims. This provision applies
to "[a]n action founded on the design, planning, or construction of
an improvement to real property." Fla. Stat. ch. 95.11(3)(c)
(1995). Schoninger contends that the installation of the membrane
on the Kmart roof was not an "improvement to real property." We
reject this argument.
Although chapter 95 does not define an "improvement," the
Florida Supreme Court has defined it as "[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."
Hillsboro Island House Condominium Apartments, Inc. v. Town of
Hillsboro Beach, 263 So.2d 209, 213 (Fla.1972) (quoting Black's Law
Dictionary 890 (4th ed.1969) (internal quotes omitted)). According
to Schoninger, the "replacement" of the entire Kmart roof was a
"mere repair." The record does not support this contention.
Schoninger did not hire JPS because the Kmart roof needed
immediate repair; Schoninger hired JPS to attach to the Kmart
building an entirely new, ostensibly durable covering. Howard
Schoninger stated as much when he identified his reason for hiring
JPS: "I knew I would need a roof eventually." The installation of
over 100,000 square feet of membrane and fiberboard at a cost of
tens of thousands of dollars is a "valuable addition" to the Kmart
building, and it therefore qualifies as an "improvement." See
Pinnacle Port Community Ass'n, Inc. v. Orenstein, 952 F.2d 375, 378
(11th Cir.1992).
In addition, Fla. Stat. ch. 95.11(3)(c) applies to " "any'
action arising out of improvements to real property, whether
founded on contract or on negligence." Dubin v. Dow Corning Corp.,
478 So.2d 71, 72 (Fla. 2nd Dist.Ct.App.1985) (emphasis added).
Schoninger's claims for negligent misrepresentation, breach of
express and implied warranties, and negligence in the design,
manufacture, and installation of the membrane are obviously based
on contract or negligence. Therefore, Fla. Stat. ch. 95.11(3)(c)
clearly applies to all of Schoninger's claims except its fraud
claim.10
10
Schoninger contends that, when Schoninger and JPS
originally contracted to refurbish the Kmart roof, JPS
represented that the finished roof would not leak for at least
ten years while knowing that this representation was false.
Schoninger claims that it relied on this misrepresentation and
purchased a defective roof. This claim fails because the record
contains no evidence that would permit a trier of fact to find
that, at the time JPS and Schoninger agreed to the roofing
project, JPS knowingly misrepresented a material fact.
As for the latter claim, Schoninger contends that the
district court should have applied the time limit for fraud, Fla.
Stat. ch. 95.11(3)(j),11 the operation of which is described in Fla.
Stat. ch. 95.031(2).12 Schoninger asserts in its brief that, unlike
the provision applied by the district court, the fraud provision
starts the limitations period only when the plaintiff discovers the
"facts constituting the fraud." We find, however, little
difference between this language and that of Fla. Stat. ch.
95.11(3)(c): "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." Fla. Stat. ch.
95.11(3)(c) (1995). Both statutes start running when the plaintiff
discovers the defendant's error. Even if we could glean some
semantic distinction from the two provisions, both statutes provide
However, Schoninger's brief implies, but does not
assert, that the evidence established another, distinct
fraud claim. This claim can be articulated as follows:
when GRI finished the project, JPS inspected GRI's work and
discovered that it was defective. Nonetheless, JPS advised
Schoninger through Dillenbeck's first report that the work
had been done properly and that the roof would not leak.
Relying on this representation, Schoninger accepted JPS's
ten-year written warranty and, in exchange, gave up its
common law causes of action against JPS. We shall assume,
for purposes of this appeal, that Schoninger's complaint has
been amended to incorporate this theory of recovery and that
the record supports this allegation.
11
Fla. Stat. ch. 95.11(3)(j) provides a four-year statute of
limitations for "[a] legal or equitable action founded on fraud."
Fla. Stat. ch. 95.11(3)(j) (1995).
12
Fla. Stat. ch. 95.031(2) states that "[a]ctions for ...
fraud under s. 95.11(3) must be begun within the period
prescribed in this chapter, with the period running from the time
the facts giving rise to the cause of action were discovered or
should have been discovered with the exercise of due diligence."
Fla. Stat. ch. 95.031(2) (1995).
a four-year limitations period, rendering the distinction at best
academic. We therefore decline to reverse the district court's
application of Fla. Stat. ch. 95.11(3)(c) to Schoninger's implied
fraud claim.
B.
Having determined that Fla. Stat. ch. 95.11(3)(c) applies to
all of Schoninger's claims, we must decide when the statute began
to run. Schoninger argues that the district court erred in holding
as a matter of law that the statute began to run before March 18,
1989.13 As noted supra, the limitations period contained in Fla.
Stat. ch. 95.11(3)(c) starts running "from the time the defect is
discovered or should have been discovered with the exercise of due
diligence." Fla. Stat. ch. 95.11(3)(c) (1995). Under Schoninger's
approach, it could not have learned of JPS' misconduct until JPS
told Schoninger that the Kmart roof needed major repairs.
Schoninger therefore asserts that Fla. Stat. ch. 95.11(3)(c) did
not begin running until September 19, 1991, the date on which JPS
informed Schoninger of the state of the Kmart roof.
Schoninger analogizes this case to Board of Trustees v.
Caudill Rowlett Scott, Inc., 461 So.2d 239 (Fla. 1st
Dist.Ct.App.1984), appeal denied, 472 So.2d 1180 (Fla.1985). In
Caudill, a community college sued the contractors that built
several campus buildings. The first buildings were completed
approximately nine years before the litigation commenced. The
13
Schoninger filed its complaint on March 18, 1993.
Therefore, the four-year statute of limitations contained in Fla.
Stat. ch. 95.11(3)(c) must have started running after March 18,
1989 for Schoninger's complaint to have been timely filed.
underground pipes installed by the defendants started leaking
shortly thereafter, and the defendants attempted several
unsuccessful repairs. Eight years after the completion of the
buildings, the college conducted an extensive survey and discovered
that the leaks were caused by improper installation of the pipes.
The trial court found that the first leaks had started the running
of Fla. Stat. ch. 95.11(3)(c), but the Florida District Court of
Appeal reversed. The appellate court held that a genuine issue
existed "whether the college had discovered, or by diligence should
have discovered, the corroded pipes which are the basis of its
cause of action." Caudill at 243. Based on this case, Schoninger
claims that a genuine issue of fact remains regarding when Fla.
Stat. ch. 95.11(3)(c) began to run here. We disagree.
The court itself in Caudill distinguished leaky pipe cases
from leaky roof cases: " "roof leaks' which occur as soon as the
roof is finished indicate that either the architect, the roofing
contractor, or the material supplier is at fault; ... defects in
underground water pipes are not as easily detectable as defects in
a roof, which become apparent after every rainstorm." Caudill at
244. Kmart reported multiple leaks to Schoninger on September 29,
1984, shortly after the construction was completed. Between this
date and March 18, 1989, Schoninger's records indicate Kmart
complained of approximately fifty leaks. New roofs do not leak;
they do not require a period to "settle" before they become
watertight. We hold that the first reported series of leaks
started the statute of limitations running. See Dubin v. Dow
Corning Corp., 478 So.2d 71, 73 (Fla. 2nd Dist.Ct.App.1985) (citing
Kelley v. School Bd. of Seminole County, 435 So.2d 804, 806
(Fla.1983)). Schoninger cannot rely on a lack of knowledge of the
specific cause of the defects in the Kmart roof to protect it from
the running of Fla. Stat. ch. 95.11(3)(c). See Almand Constr. Co.
v. Evans, 547 So.2d 626, 628 (Fla.1989).
Even assuming arguendo that the statute started running only
when Schoninger could attribute the leaks to improper installation,
Schoninger had such knowledge on August 28, 1986, more than six
years before Schoninger filed its complaint. On that day, Howard
Schoninger sent a letter to JPS in which he quoted a report he
received from the tenant of the Kmart building:
"[T]he probable source of the leaks is water running under the
improperly secured flashings that were installed by General
Roofing, Inc., along with J.P. Stevens Roof. The items do not
appear to be properly secured or sealed to prevent water
seeping under them. The toggle-bolt fasting devices that are
used to secure the recovery board and single ply membrane for
the J.P. Stevens roof, appear to be improperly secured...."
This quote demonstrates conclusively that Schoninger was on notice
of its remaining causes of action long before March 18, 1989. We
hold that, as a matter of Florida law, Fla. Stat. ch. 95.11(3)(c),
the applicable statute of limitations, began to run on September
29, 1984. As a matter of federal law, we hold that the weight of
the evidence supporting this starting date entitles JPS to summary
judgment pursuant to Fed.R.Civ.P. 56(c).
AFFIRMED.