Construction defect litigation in Florida has long existed in tension between a claimant’s right to seek judicial relief and the Legislature’s directive that parties first attempt to resolve disputes without the courts. Chapter 558 of the Florida Statutes embodies that directive, requiring claimants to serve written pre-suit notice on contractors before initiating litigation for construction defects. A recent decision from the Third District Court of Appeal confirms that this requirement is not merely procedural guidance; it is a mandatory condition precedent that courts may not overlook.[i]

In early 2024, Daystar Peterson (“Peterson”), a condominium unit owner at Brickell Heights East (“Brickell Heights”), in Miami, filed suit in the Circuit Court for Miami-Dade County against the condominium association and Moss & Associates, LLC (“Moss”).[ii] Moss was a general contractor hired by the association to perform renovations and repairs to the building.[iii] Peterson alleged that Moss’s negligent workmanship caused water damage to his unit.[iv] Critically, Peterson did not serve Moss with any written notice of claim before filing suit.[v]

Section 558.004, Florida Statutes, mandates that a claimant serve written notice on a contractor at least sixty days before filing a construction defect action or one hundred twenty days when the action involves an association representing more than twenty parcels.[vi] Peterson did not dispute that he had failed to serve the required notice; instead, he argued that he could not have done so because he was unaware of the specific details of Moss’s scope of work.[vii] Moss moved to stay the litigation under section 558.003, which provides that when a claimant files a construction defect action without first satisfying Chapter 558’s requirements, the court “shall stay the action, without prejudice.”[viii] The trial court denied Moss’s motion, characterizing it as “premature” and suggesting the issue could be revisited at a later stage of the proceedings.[ix] Moss then petitioned the Third District Court of Appeal for a writ of certiorari.[x]

To obtain certiorari relief, a petitioner must demonstrate (1) irreparable harm that cannot be remedied on appeal, and (2) a departure from the essential requirements of the law.[xi] On irreparable harm, the court drew a direct analogy to an insured’s failure to comply with the pre-suit notice requirements of section 627.70152, Florida Statutes.[xii] The court reasoned that once litigation proceeds without the required Chapter 558 notice, the opportunity for confidential pre-suit settlement negotiations is permanently lost, which is an injury that no appellate ruling can undo.[xiii] Post-judgment appeal cannot restore the statutory process the Legislature designed to resolve claims without litigation.

On departure from essential requirements, the court emphasized that section 558.003’s use of the word “shall” strips the trial court of any discretion.[xiv] When a claimant files a construction defect action without Chapter 558 compliance, the statute mandates a stay. By denying Moss’s timely motion, the trial court failed to apply plain, unambiguous statutory language and thereby departed from the essential requirements of the law. The Third DCA granted the petition and quashed the trial court’s order.[xv]

Moss & Associates, LLC v. Peterson carries significant practical consequences. For claimants, it eliminates any argument that Chapter 558 notice requirements can be deferred or excused simply because a claimant is unfamiliar with a contractor’s scope of work. The statute requires notice based on at least a visual inspection and a reasonable description of each alleged defect—not a full forensic investigation. For contractors and their counsel, this decision provides a clear and enforceable procedural remedy. A complete absence of any Chapter 558 notice is sufficient grounds for certiorari review, not merely a defense to raise at trial. Ultimately, this ruling reinforces the Legislature’s intent behind Chapter 558: to encourage resolution of construction defect claims through confidential settlement negotiations before resorting to litigation. Courts must enforce that intent, and parties cannot circumvent it by filing suit first and expecting the pre-suit process to be overlooked.

[i] See Moss & Associates, LLC v. Peterson, 406 So. 3d 344, 346 (Fla. 3d DCA 2025).

[ii] See id.

[iii] See id.

[iv] See id.

[v] See id.

[vi] See Fla. Stat. § 558.004 (1)(a) (2025).

[vii] See Moss & Associates, 406 So. 3d at 348.

[viii] See id.

[ix] See id.

[x] See id.

[xi] See Thomas-McDonald Law Firm, P.A. v. Silva, 400 So. 3d 753 (Fla. 3d DCA 2024).

[xii] See Moss & Associates, 406 So. 3d at 349.

[xiii] See id.

[xiv] See id.

[xv] See id.

Judicial impartiality is essential to the legitimacy of the legal system, and Florida law requires judges to step aside when a litigant reasonably fears that neutrality has been compromised. Under Florida Rule of General Practice and Judicial Administration 2.330, a party may move to disqualify a judge when the alleged facts would place a reasonably prudent person in fear of not receiving a fair and impartial trial.[i] Importantly, the rule does not require proof that the judge is actually biased. Instead, the focus is on whether the circumstances create a reasonable perception of partiality. This emphasis reflects a foundational principle of judicial ethics: the judiciary must preserve not only fairness itself, but the public’s confidence that justice is administered impartially.

Florida’s disqualification doctrine therefore rests on an objective standard designed to protect litigants from the appearance of judicial bias. In MacKenzie v. Super Kids Bargain Store, Inc., the Florida Supreme Court explained that the relevant inquiry is whether the facts alleged would cause a reasonably prudent person to fear that they could not receive a fair trial.[ii] Courts evaluating a motion for disqualification do not determine whether the allegations are true. Instead, they assess only whether the motion is legally sufficient to create a reasonable fear of partiality. If that threshold is met, recusal becomes mandatory. This procedural posture protects litigants from the nearly impossible burden of proving actual bias while ensuring that judicial neutrality remains beyond reasonable doubt.

Recent refinements to Rule 2.330 clarify the procedural requirements governing judicial disqualification and reinforce the rule’s protective function. The rule requires that a motion set forth the specific facts supporting disqualification and identify the date the moving party discovered those facts.[iii] In addition, litigants generally have twenty days after discovering the grounds for disqualification to file the motion.[iv] Perhaps most importantly, the rule confirms that the challenged judge may determine only the legal sufficiency of the motion, not the truth of the allegations. When a motion is legally sufficient, the judge must enter an order granting disqualification and take no further action in the case. These procedural safeguards ensure that disputes over impartiality are resolved quickly and transparently.

Florida Appellate Courts have consistently reinforced this objective framework when reviewing disqualification issues. In Fischer v. Knuck, the Florida Supreme Court emphasized the procedural limits of disqualification, making clear that a motion filed after an adverse ruling is legally insufficient and cannot be used as a strategic tool to challenge the court’s decision.[v] By focusing on the legal sufficiency of the motion rather than the judge’s subjective view, the doctrine prioritizes the integrity of the judicial process over individual judicial discretion.

Judicial comments or conduct during proceedings can also create grounds for recusal when they suggest hostility or a predetermined view of the case. In Livingston v. State, the Florida Supreme Court recognized that judicial remarks demonstrating antagonism that would cause a reasonable fear of unfairness in the proceeding may require disqualification.[vi] Although judges inevitably approach disputes with their own experiences and perspectives, the law requires that those perspectives never interfere with the impartial administration of justice.

The relationship between perception and fairness in the courtroom can be understood through a useful artistic analogy. In visual art, the canvas may change from one work to the next, but the frame must remain level to present the image clearly. Litigation presents a similar dynamic. Each case introduces new facts, arguments, and narratives, the “art” placed before the court. But the structural rules of procedure operate as the frame, ensuring that the adjudicative process remains balanced regardless of the dispute being considered. Judicial disqualification doctrine functions as part of that structural frame, preventing even the appearance that personal perspective has tilted the judicial process.

Ultimately, Florida’s disqualification framework protects not only individual litigants but also the institutional legitimacy of the judiciary itself. When judges step aside in cases that raise reasonable concerns about impartiality, they reaffirm the legal system’s commitment to fairness and transparency. In doing so, they reinforce a foundational principle of justice: courts must not only administer the law fairly but must also maintain the public’s confidence that they are doing so.

[i] Fla. R. Gen. Prac. & Jud. Admin. 2.330 (2026).

[ii] MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332, 1335 (Fla. 1990).

[iii] Fla. R. Gen. Prac. & Jud. Admin. 2.330(c) (2026).

[iv] Fla. R. Gen. Prac. & Jud. Admin. 2.330(g) (2026).

[v] Fischer v. Knuck, 497 So. 2d 240, 242–43 (Fla. 1986).

[vi] Livingston v. State, 441 So. 2d 1083, 1085–86 (Fla. 1983).