Wednesday, December 23, 2009

Certiorari Denied In Attempt To Abate Chinese Drywall Case

In Banner Supply Company v. Harrell (3D09-2165), the Third District denied a petition for certiorari filed by a party seeking to abate a Chinese drywall case.  The petitioners argued that the plaintiff below failed to comply with sections 558.001–005, Florida Statutes which states "A claimant may not file an action subject to this chapter without first complying with the requirements of this chapter."  The court stated:
The claimants below (“Harrells”) filed the initial complaint on February 3, 2009, as a putative class action suit seeking damages allegedly arising out of construction using defective drywall imported from China...Although Chapter 558 does not apply to claims for personal injury, the Harrells simultaneously served Banner with a letter advising it of notice of claim under Chapter 558 of the Florida Statutes. On March 17, 2009, the Harrells filed an amended complaint asserting a claim for property damage due to the alleged defective drywall, to which Chapter 558 does apply. Banner Supply filed a motion to abate pursuant to Chapter 558, which was denied by the trial court judge.
The record shows that the Harrells failed to follow the statutory requirements of notice and opportunity to inspect prior to filing suit.  They gave separate “notice” at time of filing the initial complaint, which claims were not subject to Chapter 558. Although the Harrells invited inspection, Banner Supply did nothing to attempt to comply with the noticed statute and to inspect the property. Forty-two days later, the Harrells amended their initial complaint to include a claim for property damages due to the alleged defective dry wall thereby invoking Chapter 558, but without giving the statutorily required sixty days notice prior to filing the amended complaint. Banner Supply, again, did nothing to comply with Chapter 558 in response to the amended complaint. It did not seek to inspect or negotiate a resolution. All it did was file a motion to abate and wait until the hearing.
The real problem with the petition, according to the court:
By the time Banner’s motion to abate was heard by the trial court on July 1, 2009, more than sixty days had passed since the amended complaint was filed and the trial court determined, and we agree, that abatement would have been futile.  Banner Supply had the opportunity to comply with the requirements of Chapter 558 and was given the opportunity by the Harrells to timely inspect and it chose not to do so. Abatement, at that point, would have been futile.


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