Kelley v. School Bd. of Seminole County

• Decision Date: 14 July 1983
• Docket Number: No. 62152,62152
• Citation: 435 So.2d 804
• Parties: Eoghan N. KELLEY, Petitioner, v. SCHOOL BOARD OF SEMINOLE COUNTY, Respondent.
• Court: Florida Supreme Court

Page 804

435 So.2d 804

Eoghan N. KELLEY, Petitioner, v. SCHOOL BOARD OF SEMINOLE COUNTY, Respondent.

No. 62152.

Supreme Court of Florida.

July 14, 1983.

Stephen D. Feinberg and Lora A. Dunlap of Akerman, Senterfitt & Eidson, Orlando, for petitioner.

Ned N. Julian, Jr. of Stenstrom, McIntosh, Julian, Colbert & Whigham, Sanford, and Marcia K. Lippincott, Orlando, for respondent.

McDONALD, Justice.

We have for review School Board of Seminole County v. GAF Corp., 413 So.2d 1208 (Fla. 5th DCA 1982), because of conflict with 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), and Havatampa Corp. v. McElvy, Jennewein, Stefany & Howard, Architects/Planners, Inc., 417 So.2d 703 (Fla. 2d DCA 1982). We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution, and quash the district court's opinion in this case.

In 1969 and 1970 the school board contracted with Kelley to provide architectural services for the design and construction of several elementary schools in Seminole County. The roofs of the three schools concerned with in this case each began leaking before or shortly after completion of construction. Extensive repairs were made over the years, but the roofs of all three schools eventually had to be replaced.

In 1977 the school board sued Kelley, alleging that the leaks resulted from architectural errors. The school board joined the roofing subcontractors, the general contractors, and the roofing material manufacturers in 1978. The trial court granted summary judgment against the school board.

On appeal the fifth district consolidated the three cases and, holding that the statute of limitations did not bar the board's claims, reversed the summary judgment. The district court emphasized that Kelley had been involved with trying to correct the leaks from the beginning and that he had handled, coordinated, and devised the repairs. The court found that

where a "client" is relying on a "professional" to resolve and cure a problem within the ambit of their professional relationship, and where the professional continuously works on the problem and assures the client the problem is being solved, we think it is a question of fact resolvable by a jury, as to when the client knew or should have known his problem was permanent and irreparable.

413 So.2d at 1211-12. The majority found the "continuous treatment" doctrine ¹ to be embodied in Florida's statute of limitations when a client-professional relationship is involved. In dissent, however, Judge Cowart stated that the continuous treatment doctrine is a new concept to Florida law and that, within the time allowed by law, "the client should either give up on his amiable but bungling professional, get competent help and sue, or be forever barred from asserting his stale claim." Id. at 1213.

We find that Judge Cowart reached the proper conclusion in this case. Subsection 95.11(3)(c), Florida Statutes (1977), ² provides a four-year statute of limitations for

action[s] 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 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; 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. In any event the action must be commenced within 12 years after the date of actual possession by the owner, 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.

The school board filed suit in August 1977. Under subsection 95.11(3)(c), therefore, it would have had to have discovered that it had a cause of action between August 1973 and August 1977.

As a general rule, a statute of limitations begins to run when there has been notice of an invasion of legal rights or a person has been put on notice of his right to a cause of action. City of Miami v. Brooks, 70 So.2d 306 (Fla.1954). The record establishes that the school board had knowledge of the defective roofs sufficient to put it on notice that it had, or might have had, a cause of action prior to August 1973. ³ The roofs started leaking in 1970 and 1971 and, apparently, continued to leak up to the time of filing these suits. As Judge Cowart pointed out: "When a newly finished roof leaks it is not only apparent, but obvious, that someone is at fault." 413 So.2d at 1212. The board, therefore, knew that an obvious problem existed more than four years prior to August 1977.

Moreover, in January 1973 the school board's maintenance director sent a memorandum to the board's director of auxiliary services in which he stated that an inspection showed that "the areas leaking were apparently at the expansion joints in the building. There were no provisions made in the roof itself to prevent the material from cracking due to expansion." In a letter dated March 30, 1973 one of the roofing contractors told the director of auxiliary services that the roof decking was splitting which caused the roofing materials to split. The director, in a handwritten note on the bottom of that letter, told Kelley's office that the deck split could void the roofing bond which greatly concerned him. Also, the director of auxiliary services stated in a deposition that by early 1973 some areas of the roofs which had previously been repaired were again causing problems.

In Havatampa the second district faced a similar situation. Havatampa knew that the roof of its new manufacturing facility leaked when it took possession of...