Third District Court of Appeal
State of Florida
Opinion filed September 20, 2023.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-1911
Lower Tribunal No. 19-22104
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Slavica Raffay and Attila Raffay,
Appellants,
vs.
Longwood House Condominium Association, Inc., et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, David C.
Miller, Judge.
Gulisano Law, PLLC, and Michael Gulisano (Boca Raton), for
appellants.
Cole, Scott & Kissane, P.A., and Francesca M. Stein and Scott A.
Cole, for appellee Longwood House Condominium Association, Inc.;
Shapiro, Blasi, Wasserman & Hermann, P.A., and Joshua L. Zipper (Boca
Raton), for appellee Mitchel Zipper.
Before FERNANDEZ, HENDON, and LOBREE, JJ.
HENDON, J.
The Plaintiffs below, Slavica Raffay (“Ms. Raffay”) and Attila Raffay
(“Mr. Raffay”) (collectively, “Appellants”), appeal from the trial court’s “Order
Granting Final Judgment for the Defendants.” We affirm.
Facts
Appellants owned unit 108, 1 of the Longwood House Condominium,
and were members of the Longwood House Condominium Association, Inc.
(“Association”). Mitchel Zipper and Sidney Zipper (collectively, “the
Zippers”) owned unit 208, which is directly above unit 108. Appellants
rented out unit 108, but when the tenants left in July 2017, Ms. Raffay
noticed several leaks causing water stains, mold, and further damage to
the ceiling and walls of the unit’s bathrooms, kitchen, guest bedroom, and
elsewhere throughout the unit.
She opened a claim with her insurance carrier, Citizens Property
Insurance Corporation (“Citizens”), and Citizens inspected the unit. Further,
Daniel P. Connery, P.E. of Scientific Application in Forensic Engineering,
LLC (“SAFE”), on behalf of Citizens, inspected unit 108 on September 20,
2017, and inspected unit 208 and the roof on October 10, 2017. SAFE
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Ms. Raffay purchased unit 108 in 1994. She and Mr. Raffay, who she
married in 2002, signed a mortgage taken on the subject property in 2004.
Appellants initially resided at the unit before renting it out. The unit was sold
in October of 2020.
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prepared an engineering report of findings, noting water stains and prior
damage, mold, and prior repairs. The report pointed to both unit 108 and
unit 208 as possible sources for the alleged damage.
On July 25, 2019, Ms. Raffay filed suit against the Association and
the Zippers (collectively, “Defendants”) in Miami-Dade Circuit Court.
Appellants then filed an amended complaint, adding Mr. Raffay as a party,
and asserting three counts: 1) breach of the Declaration of Condominium
and Chapter 718 of the Florida Statutes by the Association; 2) breach of
statutory duty by the Board of Directors of the Association; and 3) breach of
the Declaration of Condominium by the Zippers.
Ms. Raffay testified at her deposition that she first noticed water
leaking from the ceiling in the 1990s and that “it would repeat every time
with a strong rain.” She also testified the last time she saw water leaking
was in 2013. However, when visiting the unit thereafter, she saw stains on
the plastic tiles, but does not know how long the stains or mold were
present prior to July 2017.
The Association filed a motion for summary judgment, asserting,
among other things, that Appellants’ claims are time-barred under the four-
year statute of limitations. Appellants also filed a motion for summary
judgment, noting the subject property “suffered damage since the time the
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unit was purchased in 1994.” Further, in their motion for summary
judgment, Appellants listed material facts, which began with a June 2013
ceiling leak.
Following a hearing on both motions, the trial court denied Appellants’
motion for summary judgment and granted the Association’s motion for
summary judgment. Specifically, the trial court granted the Association’s
motion for summary judgment “solely on the statute of limitations
argument,” determining the claim was ripe in 20132 and that Appellants’
claim, which was not filed until 2019, was time-barred under the applicable
statute of limitations. Final judgment was entered in favor of the Association
and the Zippers and against Appellants. A later motion for rehearing was
denied; thereafter, this appeal followed.
Our standard of review for an order granting summary judgment is de
novo. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d
126, 130 (Fla. 2000).
Analysis
Pursuant to the Florida Rules of Civil Procedure, summary judgment
will be granted if the movant demonstrates there is “no genuine dispute as
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Per the trial court, “the water leaks were continuous and ongoing by 2013;
by which time, Plaintiffs were aware of the leaks and had complained of
damage to their property.”
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to any material fact and the movant is entitled to judgment as a matter of
law.” Fla. R. Civ. P. 1.510(a). A genuine dispute is one in which “‘the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party.’” In re: Amends. to Fla. R. Civ. P. 1.510, 309 So. 3d 192,
193 (Fla. 2020) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). Further, “‘[i]f the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted.’” Id. (quoting
Anderson, 477 U.S. at 249-50).
The trial court cited to the statute of limitations in granting the
Association’s motion for summary judgment, finding the Appellants’ claims
to be time-barred under the statute. In Florida, the statute of limitations runs
from the time the cause of action accrues. § 95.031, Fla. Stat. (2023). The
filing of a complaint stops the running of a statute of limitation. See Fla. R.
Civ. P. 1.050. Generally, a cause of action “accrues when the last element
constituting the cause of action occurs.” § 95.031(1). For breach of contract
claims, the cause of action “‘accrues and the limitations period commences
at the time of breach.’” Grove Isle Ass’n v. Grove Isle Assocs., LLLP, 137
So. 3d 1081, 1095 (Fla. 3d DCA 2014) (quoting Clark v. Estate of Elrod, 61
So. 3d 416, 418 (Fla. 2d DCA 2011)). The limitations period for “[a] legal or
equitable action on a contract, obligation, or liability founded on a written
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instrument” is five years. § 95.11(2)(b), Fla. Stat. (2023). The limitations
period for “[a]n action founded on a statutory liability” is four years. §
95.11(3)(e), Fla. Stat. (2023).
On appeal, the Appellants’ principal argument is that final judgment in
favor of the Defendants, based on the statute of limitations, should be
reversed because the lower court incorrectly applied the statute of
limitations when Appellants alleged recognized exceptions to the statute of
limitations: ongoing nonperformance, continuing violations, or continuing
torts. Ongoing nonperformance can constitute a continuing breach while a
contract remains in effect, so that the accrual of a cause of action for
breach of contract is not “limited to the [party’s] initial breach.” See City of
Quincy v. Womack, 60 So. 3d 1076, 1078 (Fla. 1st DCA 2011) (holding the
cause of action was not limited to the initial breach because of the
continuing nature of the obligations under the contract and, therefore, the
statute of limitations had not expired); see also Winn-Dixie Stores, Inc. v.
Dolgencorp, LLC, 746 F.3d 1008, 1043 (11th Cir. 2014) (finding “Florida
courts recognizes a continuing violation rule”); Grove Isle Ass’n, 137 So. 3d
at 1095-96 (reversing the trial court’s dismissal with prejudice of a breach
of contract claim because plaintiff alleged the breach is continuing in
nature).
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Appellants argue the continuing torts doctrine applies because the
Association’s ongoing nonperformance equates to continual tortious acts,
not continual harmful effects from an original completed act. Appellants
further argue it is the “continued inactions or nonperformance” that caused,
and are causing, recurring injury to their unit, and that the conduct
continued until at least 2017, providing subsequent dates from which the
statute of limitations should be calculated.
While there is persuasive case law from the First District Court of
Appeal in Womack that ongoing nonperformance of a contract does not
limit the accrual of a cause of action for breach of contract to the initial
breach, we find Appellants do not provide evidence of ongoing
nonperformance, regarding the previous leaks, to warrant application of this
exception. Here, the record shows Appellants testified there were prior
water leaks and that they last saw a leak in 2013. Appellants testified the
Association was informed of the 2013 leak and some repairs were
completed by Mitchel Zipper before unit 108 was subsequently rented out
by the Appellants. None of the subsequent tenants complained about leaks
or mold. Further, there is no evidence to establish a continual failure to
perform because the Appellants did not provide evidence that they
contacted the Association or the Zippers about nonperformance of
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obligations regarding the 2013 leak, after the 2013 leak, and before the
2017 leak.
Also, the record shows the Appellants treated the prior leaks as
separate events, as Mr. Raffay testified, “[s]o usually what happened is that
leakage happens. We call him. He calls the plumber. That gets stopped.
We collect all the water and move on. Business as usual.” Therefore, the
continuing tort doctrine does not apply because the alleged act of
nonperformance constituted separate injuries from which the Appellants
could have filed suit as each incident occurred. See Chakra 5, Inc. v. City
of Miami Beach, 254 So. 3d 1056, 1060, 1065 (Fla. 3d DCA 2018).
Appellants’ secondary argument is that final judgment in favor of the
Defendants should be reversed because the lower court incorrectly applied
the statute of limitation when several of the complained-of acts were
alleged to have occurred within the four years preceding the filing of the
complaint.
Florida courts have held it is error to grant summary judgment as to
counts that fall within the statute of limitations. See Halkey-Roberts Corp. v.
Mackal, 641 So. 2d 445, 447 (Fla. 2d DCA 1994). Yet, under the summary
judgment standard, the test for the existence of a genuine factual dispute is
whether “the evidence is such that a reasonable jury could return a verdict
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for the nonmoving party.” In re: Amends. Fla. R. Civ. P. 1.510, 317 So. 3d
72, 75 (Fla. 2021) (citation omitted). Federal courts have held that “mere
conclusions and unsupported factual allegation are legally insufficient to
defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326
(11th Cir. 2005). Further, the court must also conclude that the moving
party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(a).
This case ultimately turns on whether there is evidence that the
alleged 2017 water leak occurred in 2017 to fall within the statute of
limitations. Appellants argue that one specific complained-of incident
occurred in 2017, and since suit was filed in 2019, any claim that accrued
after 2015 would not be barred. However, Appellants have not provided
any evidence to support the occurrence of a new leak in 2017. Therefore,
we find the trial court did not err in granting summary judgment.
We do not address Appellants’ argument that summary judgment as
to the Zippers should be reversed because the Zippers never filed a motion
for summary judgment, which was first raised in the reply brief. Issues
raised for the first time in the reply brief are precluded from our
consideration. See Gen. Mortg. Assocs., Inc. v. Campolo Realty & Mortg.
Corp., 678 So. 2d 431, 431 (Fla. 3d DCA 1996). Accordingly, we affirm.
Affirmed.
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