Yusenko et al v. Lennar Corporation et al

Filing 33

ORDER STAYING CASE granting in part 24 MOTION to Dismiss, or in the Alternative, to Stay, staying the action until 03/04/2010 and directing counsel to file a report regarding the status of the case at that time. Signed by Honorable Joseph F Anderson, Jr on 12/04/09. (bshr, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA R O C K HILL DIVISION O le g and Jennifer Yusenko, P l a i n t if f s , vs. L e n n a r Corporation; Home Buyers W a rra n ty Corporation d/b/a/ 2-10 H o m e Buyers Warranty Corporation; N a tio n a l Home Insurance Company; a n d John Doe, D e f e n d a n ts . ) ) ) ) ) ) ) ) ) ) ) ) ) ) C / A No.: 0:09-2395-JFA

ORDER STAYING CASE

T h is matter comes before the court on defendant Lennar Carolinas LLC's ("Lennar") m o tio n to dismiss or, in the alternative, to stay [dkt. # 24] Oleg and Jennifer Yusenko's (the " Y u se n k o s" ) suit alleging defective construction of their home. The parties have fully b rie f ed the motion, and conferred with the court on December 4, 2009. After reviewing the b rie f s and conferring with counsel, the court grants Lennar's motion in part. U n d e r the South Carolina Notice and Opportunity to Cure Construction Dwelling D e f ec ts Act, S.C. Code Ann. §§ 40-59-810 to 860. (Supp. 2008), plaintiffs asserting d e f ec tiv e construction of their dwelling must give specific written notice to any contractor o r subcontractor against whom a claim is sought at least ninety days prior to filing suit. P u r s u a n t to S.C. Code Ann. § 40-59-840, the notice of claim must contain (1) a statement th a t the claimant asserts a construction defect; (2) a description of the claim in reasonable

d e t a i l sufficient to determine the general nature of the construction defect; and (3) a d e sc rip tio n of any results of the defect, if known. S.C. Code Ann. § 40-59-840. Within th irty days of receipt of the required notice, the contractor or subcontractor may elect, th ro u g h written notice, to inspect, offer to remedy, offer to settle with the claimant, or deny th e claim regarding defects. S.C. Code Ann. § 40-59-850. The claimant, in turn, must allow th e contractor or subcontractor access to the dwelling for inspection, and if repairs are agreed u p o n , then reasonable access to accomplish the repairs. Id. If the claimant files an action in c o u rt before first complying with the requirements of the statute, the court must stay the a c tio n until the claimant has complied with the requirements of this article. S.C. Code Ann. § 40-59-830. T h e Yusenkos failed to establish in their complaint, their response to Lennar's motion to dismiss [dkt. # 27], or in the conference call with the court on December 4, 2009, that they h a v e complied with the notice provisions of S.C. Code Ann. § 40-59-40. The Yusenkos a rg u e in their response to Lennar's motion to dismiss that prior correspondence combined w ith the factual allegations in the complaint should serve to accomplish the functional e q u iv a le n t of the notice envisioned by S.C. Code Ann. § 40-59-40. While requiring such sp e c if ic notice under the circumstances may appear academic or formalistic, the statute p lain ly calls for a specific form of notice to be provided to Lennar. The notice called for in th e statute requires a clear statement of the alleged defects and initiates a procedure through w h ic h an opportunity to inspect such defects may be made so that an informed decision may

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b e made as to how to address the allegations. For these reasons, the court finds compliance w ith the letter of the statute necessary to vitiate the statutory scheme the South Carolina le g is la tu re crafted to address disputes such as the one at bar. Accordingly, the court grants Lennar's motion [dkt. # 24] insofar as the court orders th a t plaintiffs Oleg and Jennifer Yusenko immediately comply with the notice requirements o f S.C. Code Ann. § 40-59-840, and that the case be stayed until March 4, 2010. The court a ls o orders that on, or immediately after, March 4, 2010, the parties inform the court of the sta tu s of the case by means of a filing on the docket. Should any claim or claims remain u n re so lv e d at that time, the court will issue an order lifting its stay and issue an amended s c h e d u lin g order. IT IS SO ORDERED.

D ec em b er 4, 2009 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

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