Long v. First Federal Sav. and Loan Ass'n of Citrus County, BK-15

• Decision Date: 18 November 1986
• Docket Number: No. BK-15,BK-15
• Citation: 11 Fla. L. Weekly 2399,497 So.2d 964
• Parties: 11 Fla. L. Weekly 2399 Thomas Edmund LONG, Jr. and Anny Lundy Long, Appellants, v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CITRUS COUNTY, Appellee.
• Court: Florida District Court of Appeals

Page 964

497 So.2d 964

11 Fla. L. Weekly 2399

Thomas Edmund LONG, Jr. and Anny Lundy Long, Appellants, v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CITRUS COUNTY, Appellee.

No. BK-15.

District Court of Appeal of Florida,

First District.

Nov. 18, 1986.

Judith Benninger Brown, Gainesville, for appellants.

Richard S. Fitzpatrick, of Fitzpatrick & Fitzpatrick, Inverness, for appellee.

THOMPSON, Judge.

Mr. and Mrs. Long, the plaintiffs below, appeal a final summary judgment finding that their claim was barred by § 95.11(3)(c), Fla.Stat, a four year statute of limitations. We agree that the circuit court applied the wrong statute of limitations, and reverse.

The Longs purchased a house and lot from the appellee in 1979. Prior to the sale the parties entered into a Purchase and Sale Agreement which contained an express warranty that the seller would make all repairs "necessary to bring the building up to new construction standards." On or before May 20, 1980 the Longs began experiencing problems with the property's drainage system, and on July 18, 1984 they filed suit alleging that appellee had breached the express warranty by failing to remedy the drainage problems. The appellee filed a motion for summary judgment, arguing that the breach of warranty claim was barred by § 95.11(3)(c) which provides a four year statute of limitations for actions "founded on the design, planning, or construction of an improvement to real property." The Longs argued that the governing statute was § 95.11(2)(b) which provides a five year statute of limitations for actions "on a contract, obligation or liability founded on a written instrument." The circuit court found that the § 95.11(3)(c) four year statute of limitations applied, and granted appellee's motion for final summary judgment.

On appeal the Longs argue that the lower court applied the wrong statute of limitations and that their action, filed after four years but within five years of the discovery of the drainage problems, is not barred. We agree. The applicable statute of limitations for the claim asserted by the Longs is the five year statute of limitations of § 95.11(2)(b). Since their complaint was filed within five years from the discovery of the alleged breach of warranty, the claim is not barred. The appellee was merely the vendor in the sale of the property to the Longs, and is not within the class of persons sought to be protected by the shortened statute of limitations of § 95.11(3)(c). This...