2765 South Bayshore Drive Corp. v. Fred Howland, Inc., 67--601

• Decision Date: 30 July 1968
• Docket Number: No. 67--601,67--601
• Citation: 212 So.2d 911
• Parties: 2765 SOUTH BAYSHORE DRIVE CORP., a Florida corporation, on its own behalf and for the use and benefit of Millers Mutual Insurance Association of Illinois, an Illinois corporation, Appellant, v. FRED HOWLAND, INC., a Florida corporation, Herbert H. Johnson Associates, comprised of Herbert H. Johnson, John O. Grimshaw and Weed-Johnson Associates, a partnership, Appellees.
• Court: Florida District Court of Appeals

Page 911

212 So.2d 911

2765 SOUTH BAYSHORE DRIVE CORP., a Florida corporation, on its own behalf and for the use and benefit of Millers Mutual Insurance Association of Illinois, an Illinois corporation, Appellant, v. FRED HOWLAND, INC., a Florida corporation, Herbert H. Johnson Associates, comprised of Herbert H. Johnson, John O. Grimshaw and Weed-Johnson Associates, a partnership, Appellees.

No. 67--601.

District Court of Appeal of Florida, Third District.

July 30, 1968.

Hyzer, Knight & Lund, Miami, for appellant.

Walton, Lantaff, Schroeder, Carson & Wahl and James Knight, Miami, for Fred Howland, Inc.

Knight, Underwood, Peters, Hoeveler & Pickle, Miami, for Herbert H. Johnson Associates.

Before PEARSON, HENDRY and SWANN, JJ.

HENDRY, Judge.

This is an appeal by the plaintiff below, 2765 South Bayshore Drive Corporation, from two separate orders of the lower court granting summary final judgment in favor of the defendants, Herbert H. Johnson Associates and Fred Howland, Inc. This suit was originally instituted upon appellant's complaint charging the defendants with breach of contract and negligence in the construction of an office building owned by the plaintiff corporation. The defect alleged was the faulty construction of a certain chimney and flue from the oil burner located in the basement of the building and extending to the roof. Plaintiff's claim arose when the defective chimney and flue allowed smoke and soot to escape into a portion of the air conditioning system from whence it was deposited upon walls, floors, furniture and fixtures which were a part or were contained in the building.

Defendants filed separate answers, each specifically denying any negligence or breach of contract. Both answers raised the statute of limitations, § 95.11, Fla.Stat F.S.A., as an affirmative defense. Thereafter, both defendants moved for summary judgment. Acting upon the motion of the defendant, Fred Howland, Inc., the court entered the following order, quoted in part:

'This Cause came on to be heard on the 2nd day of March, 1967, on the Motion of the Defendant, Fred Howland, Inc., for Summary Judgment, and the Court at that time indicated to all parties that this Motion would be granted unless the Plaintiff could develop evidence to establish facts to show that the Defendant, Fred Howland, Inc., had fraudulently concealed the defective construction alleged in the Complaint, thereby tolling the Statute of Limitations, it now being represented to the Court that no such evidence has been uncovered to establish this fact, and it appearing to the Court that the pleadings, depositions and Answers to Interrogatories show that there is no genuine issue as to any material fact that the Statute of Limitations has outlawed the Plaintiffs' claims against this Defendant, and although the Plaintiff has filed, and the Court has considered, and 'Opposition to Motions for Summary Judgment' and the instrument therein referred to, including the Contract Bond executed by Fred Howland, Inc., and the Travelers Indemnity Company, and although the said Contract Bond is found by the Court to be an instrument under seal, and since it is the Court's view that the execution of the Contract Bond does not extend the Limitations period, (see Alropa Corporation vs. McNamee (143 Fla. 785), 197 So. 514), and for that reason the Plaintiff's Motion for leave to file (a) second amended complaint will be denied, and for the reasons hereinabove stated the defendant, Fred Howland, Inc., is entitled to a Summary Judgment, it is

'Adjudged and Ordered:

'1. That Motion for Summary Judgment in favor of the defendant, Fred Howland, Inc., be and the same is hereby granted. * * *

'2. That plaintiff's Motion for Leave to File Second Amended Complaint be and the same is hereby denied. * * *'

The summary final judgment in favor of Herbert H. Johnson Associates is substantially the same, and we will not unduly lengthen this opinion by quoting it here.

In order to more fully delineate the issues here involved, we need only set out the chronology of events. On May 1, 1959, plaintiff contracted with Herbert H. Johnson Associates for the drafting of plans and specifications for the proposed building. The contract for construction of the building was executed on November 16, 1959, between plaintiff and Fred Howland, Inc., with the actual construction taking place between December 31, 1959, and January 4, 1961. The record shows that it was probably in August, 1960, that the defective chimney and flue were built by the subcontractor. On January 4, 1961, work on the building was substantially complete, and the final payment under the contract was made by plaintiff on January 24, 1961. The defect in construction was discovered on October 26 or 27, 1964. The present suit was filed in the Circuit Court of Dade County on March 17, 1966. A performance bond was obtained by Fred Howland, Inc., through The Travelers Indemnity Co. on November 16, 1959, the date of execution of the construction contract.

Plaintiff has alleged two separate causes of action, one founded upon breach of contract, the other sounding in negligence. Since these causes of action are treated dissimilarly under § 95.11, Fla.Stat., F.S.A., each must be discussed on its own merits.

Count I of the complaint alleges damage to both the building, which is real property, and to its contends, which are chattels, as a result of defendant's negligence. However, the record gives no indication as to whether subsection (4) or subsection (5) of the statute of limitations was raised as a bar to this cause of action. Such a determination is unnecessary to...