Dubin v. Dow Corning Corp.

• Decision Date: 02 October 1985
• Docket Number: Nos. 83-2406,84-113,s. 83-2406
• Citation: 478 So.2d 71,10 Fla. L. Weekly 2294
• Parties: 10 Fla. L. Weekly 2294 Dr. Dale B. DUBIN, Appellant, v. DOW CORNING CORPORATION, Appellee. Dr. Dale B. DUBIN, Appellant, v. WARE CONSTRUCTION COMPANY, INC., Appellee.
• Court: Florida District Court of Appeals

Page 71

478 So.2d 71

10 Fla. L. Weekly 2294

Dr. Dale B. DUBIN, Appellant, v. DOW CORNING CORPORATION, Appellee.

Dr. Dale B. DUBIN, Appellant, v. WARE CONSTRUCTION COMPANY, INC., Appellee.

Nos. 83-2406, 84-113.

District Court of Appeal of Florida Second District.

Oct. 2, 1985.

Rehearing Denied Nov. 4, 1985.

David C. Park of Register and Park, P.A., Tampa, for appellee Ware Const. Co., Inc. Edward M. Chew of de la Parte & Gilbert, P.A., Tampa, for appellant.

J. Brent Walker and John J. Cunningham, Jr. of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for appellee Dow Corning Corp.

RYDER, Chief Judge.

Dr. Dale Dubin appeals a trial court's order which granted final summary judgment for Dow Corning Corporation and Ware Construction Company, Inc. We affirm.

In February of 1977, Ware entered into a written contract to construct an office for Dubin. Ware installed a roof allegedly made by Dow, which allegedly had a five-year warranty.

Dubin took possession of the new building in January of 1978. During the summer of 1978, the roof began to blister and leak, and caused damage to the interior of the building. Although Ware attempted to fix the leaks, the roof continued leaking through 1978 and new leaks appeared in the summer of 1979. Later that year, Ware's subcontractor replaced one-third of the roof under the five-year Dow warranty. Thereafter, despite those attempted repairs, the roof continued to leak and caused substantial damage to the interior of the building.

In December of 1982, Dubin filed complaints against Ware and Dow alleging, among other things, breach of written warranty. In October of 1983, the trial court granted Ware and Dow's motions for summary judgment on the ground that Dubin's cause of action was barred by the four-year statute of limitations for actions founded on the design, planning or construction of an improvement to real property. § 95.11(3)(c), Fla.Stat. (1981).

On appeal, Dubin argues that the trial court should have applied the five-year statute of limitations on contracts to his breach of warranty claim. § 95.11(2)(b), Fla.Stat. (1981). We disagree.

Several Florida courts have interpreted the four-year statute, however, those interpretations have been within the context of other issues such as when notice occurs to trigger the running of the statute. Kelley v. School Board of Seminole County, 435 So.2d 804 (Fla.1983); Board of Trustees of Santa Fe Community College v. Caudill Rowlett Scott, Inc., 461 So.2d 239, 242 (Fla. 1st DCA 1984); HavaTampa Corp. v. McElvy, Jennewein, Stefany & Howard, Architects/Planners, Inc., 417 So.2d 703 (Fla. 2d DCA 1982), petition for review denied, 430 So.2d 451 (Fla.1983). We acknowledge that only the Caudill opinion affirmatively states that one count of the action was based upon breach of warranty. Additionally, because none of these cases suggest that the plaintiffs argued that the five-year statute applied to a breach of warranty count, we must rely upon the plain meaning of the statute to resolve this issue.

Subsection 95.11(3)(c), Florida Statutes (1981), provides for a four-year statute of limitations for:

(c) An action founded on the design, planning, or construction of an improvement to real property, with the time running from the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his employer, whichever date is latest; except that, when the action involves a latent defect, the time runs from the time the defect is discovered or should have been discovered with the exercise of due diligence.... (emphasis added)

We read this language to mean "any" action arising out of improvements to real property, whether founded on contract or on negligence. To read the statute otherwise would render it meaningless, because section 95.11(3)(a), Florida Statutes (1981), already provided for a four-year statute of limitations for actions founded on negligence.

Further, section 95.11(3)(c) is a specific statute relating to real property improvements. A special statute of limitations which addresses itself to specific matters takes precedence over a general statute. Carcaise v. Durden, 382 So.2d 1236, 1237 (Fla. 5th DCA), petition for review denied, 389 So.2d 1108 (Fla.1980). See also Cristich v. Allen Engineering, Inc., 458 So.2d 76, 78 n. 2 (Fla. 5th DCA 1984); Kelley, 435 So.2d at 805 n. 2.

Appellant also argues that because the Dow warranty on the roof provided for performance over a period of five years, one or more breaches of this "continuing obligation" can occur during the five-year period. Based on this reasoning, he then argues that the four-year statute of limitations for the leaks which appeared during the summer of 1979 did not expire until the summer of 1983. Appellant did not present this argument to this court until we requested briefing on the subject at oral argument. However, his argument still must fail.

The Florida Supreme Court has already rejected the "continuing treatment" doctrine which is, in essence, the same as appellant's "continuing obligation" theory. Kelley, 435 So.2d at 805-806. We agree with appellant's argument that a four-year statute of limitations could commence at any time up to the expiration of the warranty period. The statute of limitations begins to run on a warranty when the contract is breached, and the breach occurs when the defect is or should be discovered. AB CTC v. Morejon, 324 So.2d 625, 628 (Fla.1975); Lewis v. Associated Medical Institutions, Inc., 345 So.2d 852, 854 (Fla. 3d DCA), cert. denied, 353 So.2d 676 (Fla.1977); Vilord v. Jenkins, 226 So.2d 245, 247 (Fla. 2d DCA 1969). In cases where a cause of action was specifically based on leaking roofs, other courts have ruled that the statute begins to run when an owner has notice of the first leak. Kelley, 435 So.2d at 806. See also HavaTampa, 417 So.2d at 704; K/F Development & Investment Corp. v. Williamson Crane & Dozer Corp., 367 So.2d 1078 (Fla. 3d DCA), cert. denied, 378 So.2d 350 (Fla.1979). Theoretically, if the roof had first leaked right before the end of the five-year warranty period in 1983, appellant would have until 1987 to file suit. In this case, as appellant conceded to the trial court, the cause of action accrued and the statute began to run in the summer of 1978 when he had notice of the first leaks. Therefore, because appellant failed to file his complaint before the expiration of the four-year statute of limitations in the summer of 1982, we must affirm.

Affirmed.

DANAHY, J., concurs.

GRIMES, J., concurs in part and dissents in part.

GRIMES, Judge, concurring in part and dissenting in part.

I fully agree that the four-year statute of limitations under section 95.11(3)(c), Florida Statutes (1981), is applicable to this case. However, in view of the existence of the written warranties to repair for specified periods of time, I do not believe that the four-year statute had run with respect to all of Dubin's claims at the time he filed his complaint.

Dubin asserted that upon completion of construction and final payment in January of 1978, Dow had given him a written warranty to make all repairs made necessary by manufacturing defects in Dow's roofing product for a period of five years. Thus, as noted in the majority opinion, if a defect first appeared shortly before the end of the five-year warranty period, Dubin would have had an additional four years to bring suit. The majority concludes, however, that since the defects first appeared in the summer of 1978, the limitations period began to run at that time and thereby expired several months before this suit was filed in December of 1982. Ironically, this means that Dubin lost his right to sue under the five-year warranty at a time when the five-year period had not yet run out.

In Kelley v. School Board of Seminole County, 435 So.2d 804 (Fla.1983), the supreme court considered a case in which the school board sued various parties for roofing defects which had become apparent in 1973. Though suit was not filed until more than four years later, the district court of appeal had concluded that because of assurances and certain repairs made by the defendants, the four-year statute of limitations had been tolled until such time as the board knew or should have known that the roofing problem was permanent and irreparable. In quashing this opinion, the supreme court rejected the so-called "continuing treatment" doctrine and held that the statute began to run once the board knew something was wrong with the roof regardless of the assurances and attempts to repair.

The Ke...