TOLEDO PARK HOMES AND H.D.V. CONSTRUCTION CORP., APPELLANTS,
v.
JOHN A. GRANT, JR., APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Toledo Park Homes and H.D.V. Construction sued surveyor John Grant for breach of contract and professional malpractice after a survey failed to disclose an easement encroachment. The trial court granted Grant's motion to dismiss based on a two-year statute of limitations for professional malpractice, but the appellate court reversed, holding that the four-year statute of limitations applies and that the statute of limitations defense could not properly be raised by motion to dismiss on this record.
The court held that the four-year statute of limitations under Section 95.11(3) applies to surveying services rather than the two-year professional malpractice statute. Additionally, the statute of limitations defense cannot be raised by motion to dismiss unless the violation appears on the face of the complaint, and here the complaint contained no indication of when the alleged error was or should have been discovered.
[1] A motion to dismiss based on the statute of limitations is only proper when the violation appears on the face of the complaint or its exhibits.
[2] The statute of limitations for professional malpractice does not apply to all activities regulated by the Department of Professional Regulation.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“we reject appellee's hypothesis that every activity subject to the jurisdiction of the Department of Professional Regulation constitutes a "profession" within the scope of the malpractice statute of limitations, Section 95.11(4), Florida Statutes (1981). To hold otherwise would bring activities such as embalming and cosmetology within the professional malpractice statute of limitations.”
Establishes the court's narrow interpretation of what constitutes 'professional malpractice' under the statute
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIn 1977, surveyor Grant prepared plats and surveys for the appellants pursuant to contract. One survey sketch failed to disclose an easement encroachm…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Statute Of Limitations For Contract Actions cases and more on FLexlaw
HERSEY, Judge.
This matter began as an action for breach of contract and professional malpractice. Pursuant to contract entered into and performed in 1977, appellee, a registered land surveyor, prepared various plats and surveys for appellees. One such sketch of survey failed to disclose an encroachment by easement on a particular lot. After sale of that lot its purchaser filed suit and recovered damages from appellee occasioned by the undisclosed easement. In response to the complaint initiating the present litigation appellee interposed a motion to dismiss. One basis for the motion was that the statute of limitations applicable to professional malpractice, Section 95.11(4), Florida Statutes (1981), barred the action.
The trial court granted the motion and subsequently entered a final judgment finding that it was the intent of the legislature to remove claims involving professional malpractice arising out of contractual relationships based on a written instrument from the five (5) year statute of limitations set forth in Section 95.11(2), Florida Statutes, such causes of action being governed instead by the two (2) year statute of limitations provided for in Section 95.11(4), Florida Statutes.
Appellant argues that the two year statute of limitations for professional malpractice does not apply, relying on Lund v. Cook, 354 So. 2d 940 (Fla. 1st DCA), cert. denied, 360 So. 2d 1247 (Fla.1978).
We agree with this proposition and reject appellee’s hypothesis that every activity subject to the jurisdiction of the Department of Professional Regulation constitutes a “profession” within the scope of the malpractice statute of limitations, Section 95.11(4), Florida Statutes (1981). To hold otherwise would bring activities such as embalming and cosmetology within the professional malpractice statute of limitations. We are confident the legislature had no such intention.
Accordingly, we hold that the four year statute of limitations in Section 95.11(3), Florida Statutes (1981) (actually its predecessor) applies here. Accord: School Board of Seminole County v. GAF Cory., 413 So. 2d 1208 (Fla. 5th DCA 1982), rev’d. sub. nom. on other grounds, Kelley v. School Bd. Seminole County, 435 So. 2d 804, 805 n. 2 (Fla.1983). For contrary dicta see Lisbon Contractors, Inc. v. Miami-Dade Water & Sewer Authority, 537 F.Supp. 175 (S.D.Fla.1982).
Reversal of the final judgment is required, however, not because the wrong statute of limitation period was applied but for another reason. The defense of the statute of limitations may be raised by motion to dismiss only where its violation appears on the face of the complaint or its exhibits. Estate of James v. Martin Memorial Hospital, 422 So. 2d 1043, 1045 (Fla. 4th DCA 1982). In that case we also pointed out that the period of limitations begins to run from the time the cause of action was discovered or with the exercise of due care, should have been discovered. The cause of action accrues when the last ele ment constituting the cause of action occurs. Lund, 354 So. 2d at 942.
Thus even if appellant’s claim that “the last element was the finding of the jury that there were damages which were attributable to the appellants as a result of the improper survey” were correct, and it is not, appellant loses because the complaint contains no indication as to when this event occurred. In short the only time frame referred to in the complaint is the date of contract and the date of delivery of the offending sketch of survey. There is no way to tell when the alleged error was or should have been discovered.
Accordingly we reverse and remand for further proceedings.
REVERSED and REMANDED.
LETTS and BERANEK, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (15 total)
-
Garden v. Frier, 602 So. 2d 1273 (Fla. 1992)…lts reached in these two opinions are correct based on the courts’ findings that the vocation involved (real estate appraisal) did not absolutely require at least a four-year college degree of future admittees. We approve Toledo Park Homes v. Grant, 447 So. 2d 343 (Fla. 4th DCA 1984), to the extent it reached a result consistent with our views here.…
-
Cristich v. Allen Eng'g, Inc., 458 So. 2d 76 (Fla. 5th DCA 1984)…s such intricate knowledge of mathematics, geography and the physical sciences, is a “professional act.” Therefore, it is encompassed within section 95.11(4)(a), Florida Statutes. We recognize that the Fourth District, in Toledo Park Homes v. Grant, 447 So. 2d 343 (Fla. 4th DCA 1984) has concluded otherwise. The second and more difficult issue involves the last sentence in section 95.-ll(4)(a) which reads, “However, the limitation of actions herein for professional malpractice shall be limited to persons in…
-
Alexander Hamilton Corp. v. Leeson, 508 So. 2d 513 (Fla. 4th DCA 1987)…reated an exception to the effect that the statute of limitations can be raised by a motion to dismiss, if the complaint affirmatively and clearly shows the conclusive applicability of such defense as a bar to the action. Toledo Park Homes v. Grant, 447 So. 2d 343 (Fla. 4th DCA 1984); and Evans v. Parker, 440 So. 2d 640 (Fla. 1st DCA 1983). Honoring the exception, we have examined the complaint and find that it does not qualify for the exception. We are of the opinion, in light of the allegations found in the…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Eoghan N. Kelley v. Sch. Bd. OF Seminole Cnty., 435 So. 2d 804 (Fla. 1983)
- Gustav L. Lund and Harriet Bernice Lund v. Cook, 354 So. 2d 940 (Fla. 1st DCA 1978)
- Sch. Bd. OF Seminole Cnty. v. GAF Corp., 413 So. 2d 1208 (Fla. 5th DCA 1982)
- The Est. OF James James v. Martin Mem'l Hosp., 422 So. 2d 1043 (Fla. 4th DCA 1982)
- Lisbon Contractors, Inc. v. Miami-Dade Water & Sewer Auth., 537 F. Supp. 175 (S.D. Fla. 1982)