Cristich v. Allen Engineering, Inc.

• Decision Date: 01 November 1984
• Docket Number: 83-1059,Nos. 83-813,s. 83-813
• Citation: 458 So.2d 76
• Parties: Frank J. CRISTICH, et al., Appellants, v. ALLEN ENGINEERING, INC., Appellee.
• Court: Florida District Court of Appeals

Page 76

458 So.2d 76

Frank J. CRISTICH, et al., Appellants, v. ALLEN ENGINEERING, INC., Appellee.

Nos. 83-813, 83-1059.

District Court of Appeal of Florida,

Fifth District.

Nov. 1, 1984.

Richard H. Miller of Crofton, Holland, Starling, Harris & Severs, P.A., Titusville, for appellants.

Ted R. Brown of Maguire, Voorhis & Wells, P.A., Orlando, for appellee.

FRANK D. UPCHURCH, Jr., Judge.

Appellants Frank J. Cristich and Tom S. Clark filed suit against appellee Allen Engineering to recover for damages sustained as a result of an erroneous survey. The survey was prepared on an apartment complex and was certified accurate as of January 18, 1980, on the order of Johnson L. and Sally Murphy. On May 21, 1980, the Murphys entered into a contract to sell the apartment complex to appellants and furnished them with a copy of the survey.

Appellants claimed that they relied on the survey in deciding to buy the property and subsequently discovered that the dimensions, size and volume of the apartment units were not in accord with the survey. ¹ Appellee affirmatively alleged that the action was barred by the statute of limitations. Appellants actually discovered the errors in the survey on October 10, 1980, when their workmen were preparing to install carpet and did not commence this action until November 9, 1982, more than two years later. The trial court granted appellee's motion for summary judgment, finding that the two-year statute of limitations for professional malpractice applied here.

Section 95.11, Florida Statutes (1981), provides in relevant part that:

Actions other than for recovery of real property shall be commenced as follows:

(4) WITHIN TWO YEARS

(a) An action for professional malpractice, other than medical malpractice, whether founded on contract or tort; provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence. However, the limitation of actions herein for professional malpractice shall be limited to persons in privity with the professional.

Appellants argue that this two year statute of limitations does not apply here because (1) this case does not involve a "professional act," and (2) even if it does, appellants were not "persons in privity with the professional" and hence the two year limitation period is inappliable to them under the express language of the statute. If this limitation period is inapplicable here, then appellants would have four years within which to bring suit under the statute of limitations governing general negligence actions. See § 95.11(3)(a), Fla.Stat. (1981). ²

We believe that a "professional act" is involved here and that section 95.11(4)(a) applies to the alleged malpractice of appellee, a surveyor, just as it applies to attorney malpractice. See, e.g., Rosa v. Roth, 442 So.2d 323 (Fla. 3d DCA 1983); Cherney v. Moody, 413 So.2d 866 (Fla. 1st DCA 1982). The legislature has not provided a definition of "professional malpractice" in Chapter 95 nor has listed what particular professions are encompassed within the term. Webster's New Collegiate Dictionary (1979) defines "Professional" as one who is "engaged in one of the learned professions." "Profession" is defined as "a calling requiring specialized knowledge and often long and intensive academic preparation."

Land surveying is regulated by the Board of Land Surveyors, Department of Professional Regulation, pursuant to Chapter 472, Florida Statutes (1981). Section 472.005 includes the following definition:

(4)(a) 'Practice of land surveying' means, among other things, any professional service or work, the adequate performance of which involves the application of special knowledge of the principles of mathematics, the related physical and applied sciences, and the relevant requirements of law for adequate evidence of the act of measuring, locating, establishing, or reestablishing lines, angles, elevations, natural and man-made features in the air, on the surface and immediate subsurface of the earth, within underground workings, and on the beads or surface of bodies of water, for the purpose of determining or establishing the facts of size, shape, topography, tidal datum planes, legal or geodetic location or relocation, and orientation of improved or unimproved real property and appurtenances thereto, including acreage and condominiums.

This definition reveals that land surveying requires a great degree of specialized knowledge. This knowledge is generally derived from extensive academic preparation and indeed before one can sit for the surveyor's licensing exam in this state, he must either have graduated from a university surveying program and have at least two years experience in land surveying under a professional land surveyor, or have at least eight years experience under a land surveyor. See § 472.013, Fla.Stat.

We conclude that the preparation of a survey, involving as it does 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 95.11(4)(a) which reads, "However, the limitation of actions herein for professional malpractice shall be limited to persons in privity with the professional." Appellants position is that since the sellers of the property contracted with appellee for the survey, they are not in privity and are not limited to the two year limitation period.

Undoubtedly the survey was prepared by appellee with the knowledge and intent that it would be relied upon by purchasers of the property because it was part of the condominium documents furnished to purchasers. See First American Title Ins. Co. v. First Title Service Co., 457 So.2d 467 (Fla.1984). Appellants, as intended and known beneficiaries of the surveying contract, stand in the shoes of the party contracting for them and can have no greater right than a party to the contract. It would be incongruous to hold that one who deals directly with the professional is limited to two years within which to institute suit while the one who does not, but for whom the agreement is made, can assert a cause of action against the professional within four years. We hold that the court correctly applied the two year statute of limitations.

AFFIRMED.

DAUKSCH, J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge, dissenting.

I disagree that these purchasers (Frank J. Cristich, et al.) of real estate are in "privity" with the surveyor (Allen Engineering, Inc.), for purposes of applying the two year statute of limitations of section 95.11(4)(a), Florida Statutes (1981). ¹ In this case, the purchasers sued Allen Engineering for damages allegedly caused them by its negligent performance of professional duties in preparing a survey for the Murphys, the prior owners of the property. At the time the survey was done for the Murphys the purchasers had not contracted to buy the property. Nor does the record show that when the survey was prepared the purchasers knew anything about the Murphys' property, nor that the Murphys knew anything about the purchasers. ² The surveyor's potential liability in this case does not depend on a finding that the purchasers and the surveyor were "in privity" with one another. For example, in Navajo Circle, Inc. v. Development Concepts, 373 So.2d 689 (Fla. 2d DCA 1979), the Second District, while finding no privity of contract between the plaintiffs, a condominium association and owner of a unit in the condominium, and the defendant architects who supervised construction of the building, nevertheless allowed the plaintiffs action for negligence in the construction of the condominium to stand. The court stated:

The issue in any negligence action is whether the injury resulted from defendant's violation of a legal duty owed to the plaintiff. The threshold question, therefore, is whether these defendants have a legal duty to plaintiffs. '[T]he absence of contractual privity between plaintiff and defendant does not affect plaintiff's tort claim, provided plaintiff can establish the existence of a duty between the parties, and defendant's breach of such duty, with the proximate result that plaintiff suffered the damages of which it complains.' Detweiler Bros., Inc. v. John Graham & Co., 412 F.Supp. 416, 419 (E.D.Wash.1976). See also Cooper v. Jevne, 56 Cal.App.3d 860, 128 Cal.Rptr. 724 (Ct.App.2d 1976).

The duty owed by a defendant to a plaintiff may have sprung from a contractual promise made to another; however, the duty sued on in a negligence action is not the contractual promise but the duty to use reasonable care in affirmatively performing that promise. The duty exists independent of the contract. Existence of...