Dovenmuehle, Inc. v. Lawyers Title Ins. Corp.

• Decision Date: 06 November 1985
• Docket Number: No. 84-1665,84-1665
• Citation: 10 Fla. L. Weekly 2497,478 So.2d 423
• Parties: 10 Fla. L. Weekly 2497 DOVENMUEHLE, INC., an Illinois corporation, Appellant, v. LAWYERS TITLE INSURANCE CORPORATION, Appellee.
• Court: Florida District Court of Appeals

Page 423

478 So.2d 423

10 Fla. L. Weekly 2497

DOVENMUEHLE, INC., an Illinois corporation, Appellant, v. LAWYERS TITLE INSURANCE CORPORATION, Appellee.

No. 84-1665.

District Court of Appeal of Florida,

Fourth District.

Nov. 6, 1985.

Rehearing Denied Dec. 12, 1985.

Lewis M. Kanner of Trenam, Simmons, Kemper, Scharf, Barkin, Frye & O'Neill, P.A., Miami, for appellant.

George N. Jahn and Alice Blackwell White of Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A., Orlando, for appellee.

LETTS, Judge.

This case involves the entry of a summary judgment in favor of a title company which successfully claimed the cause of action against it arose at the time it allegedly breached its contract and that the statute of limitations was not tolled pending completion of all of the terms thereunder. We agree and affirm.

The mortgage lender, which had made a joint acquisition and construction loan, employed this title company, not only to issue a policy of mortgagee title insurance and conduct the acquisition closing, but also employed it to disburse over six million dollars in mortgage proceeds, in stages, pursuant to an accompanying construction loan agreement. At each stage, the title company was required to update the policy and issue a certificate of endorsement. More than five years later in 1978, the lender sought recovery of some $250,000 which it claims was erroneously disbursed to improper parties by the title company at the original acquisition closing in 1973. It is conceded that one of the lender's senior officers, and also its counsel, attended the acquisition closing and had access to the closing statement reflecting the allegedly erroneous disbursements. However, it is contested as to whether they specifically approved those disbursements or were actually aware of them in 1973.

It is also conceded that section 95.11(3)(k), Florida Statutes (1983), which provides for a four-year statute of limitations, applies. The point at issue is: when did this statute of limitations begin to run? The title company claims it did so when the alleged erroneous disbursements were made at the acquisition closing in 1973. The mortgage lender insists the statute did not commence to run until it and the title company finalized their relationship after the last payout on the construction loan sometime in 1978.

There is disagreement as to whether the continuing five year relationship between the lender and the title company constituted one contract or several, but we believe a solution to that dispute is irrelevant under the facts of this case because we are convinced the statute of limitations began to run in 1973, even if we assume for the purposes of this opinion (as we do but do not hold) that only one continuing contract existed. A fortiori the same result would pertain if separate contracts were presumed.

There can be no doubt that the erroneous disbursements in 1973, if improper as alleged by the lender, constituted a breach of contract at that time. Under the facts and circumstances such as exist in the instant proceedings, the law on this subject appears to be that "the cause of action, if any, arose at the time of the negligent act, misconduct, or alleged breach and not from the time when the damages resulted." Meyer v. Roth, 189 So.2d 515 (Fla. 3d DCA 1966), cert. dismissed, 198 So.2d 29 (Fla.1967); Fradley v. County of Dade, 187 So.2d 48 (Fla. 3d DCA 1966).

The lender believes otherwise and cites us to Birnholz v. Steisel, 394 So.2d 523 (Fla. 3d DCA 1981), and to Miami Beach First National Bank v. Borbiro, 201 So.2d 571 (Fla. 3d DCA), cert. denied, 207 So.2d 689 (Fla.1967), for the proposition that the limitation period, assuming one continuous contract, does not begin to run until the final termination, or completion, of the relationship. However, these cases are not convincing considering the posture of the matter now before us. Both these decisions, cited by the lender, concern quantum meruit claims for which the services were fully performed and there were never any allegations of breach...