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.