Lund v. Cook

Citation354 So.2d 940
Decision Date02 February 1978
Docket NumberNo. FF-164,FF-164
PartiesGustav L. LUND and Harriet Bernice Lund, Appellants, v. J. W. COOK, Appellee.
CourtFlorida District Court of Appeals

C. Roger Vinson of Beggs & Lane, Pensacola, for appellants.

A. G. Condon, Jr., of Holsberry, Emmanuel, Sheppard & Condon, Pensacola, for appellee.

McCORD, Chief Judge.

This appeal is from a summary judgment in favor of appellee by which the trial court ruled that the statute of limitations had run on appellants' cause of action. We disagree and reverse.

Appellants filed this action against appellee on January 20, 1976, for alleged negligence in making a survey and plat, the plat having been delivered to appellants in August, 1958. As stated by the trial judge in the summary judgment, appellee admitted the allegations of the complaint for the purposes of argument on the motion for summary judgment and the parties stipulated that the alleged errors in the survey work and plat were not readily apparent or discoverable by appellants; that there is evidence that appellants did not become aware of the error or errors in the survey work and plat until 1973 or 1974; that the applicable statute of limitations is § 95.11(3)(a) or § 95.11(3) (p), Florida Statutes (1975), both of which specify a period of four years. The issue before the trial court and the issue here is whether or not the statute of limitations began to run at the time of delivery of the survey and plat to appellants or at the time appellants knew or should have known of the existence of the defects therein. Chapter 74-382, Laws of Florida, made certain changes in § 95.11, and appellants contend that these changes did not alter the well-established "discovery rule" in Florida as to this cause. Appellee contends that the 1974 amendment eliminated such rule, and the statute of limitations therefore began to run in 1958 rather than in 1973 or 1974 when the errors were discovered; that this action is thus barred.

From the allegations of the complaint it appears that appellants were the owners of certain property and employed appellee to survey the property and prepare and certify the plat of a subdivision; that appellants caused the plat prepared by appellee to be recorded and thereafter sold lots to purchasers under warranty deeds over an extended period of time; that appellants later discovered that the subdivision was inaccurately and improperly located by appellee's survey and that it seriously encroached upon other property; that appellants were forced as a result thereof to purchase all of the land shown on the survey as encroaching upon such other property, such purchase being made on November 14, 1974.

In Creviston v. General Motors Corp., 225 So.2d 331 (Fla.1969), a products liability suit, the Supreme Court held that the statute of limitations on the action ran from the time the buyer first discovered or reasonably should have discovered the defect. The court there followed its previous rule established in City of Miami v. Brooks, 70 So.2d 306 (Fla.1954), a malpractice negligence action in which the court held that the statute of limitations attaches when there has been notice of an invasion of a legal right of the plaintiff or he has been put on notice of his right to a cause of action. The court there said "To hold otherwise, under circumstances of this kind, would indeed be a harsh rule and prevent relief to an injured party who was without notice during the statutory period of any negligent act that might cause injury."

In Creviston, the Supreme Court, referring to its previous ruling in Brooks and other cases, said:

"From the standpoint of legal principles, the holdings in the cases above discussed appear to...

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18 cases
  • Senfeld v. Bank of Nova Scotia Trust Co. (Cayman) Ltd.
    • United States
    • Florida District Court of Appeals
    • May 1, 1984
    ...417, and, a fortiori, in light of the later decisions of Creviston v. General Motors Corp., 225 So.2d 331 (Fla.1969), and Lund v. Cook, 354 So.2d 940 (Fla. 1st DCA), cert. denied, 360 So.2d 1247 (Fla.1978). In both Brooks and Edgerly, the Florida Supreme Court applied the discovery rule to ......
  • New Port Largo, Inc. v. Monroe County
    • United States
    • U.S. District Court — Southern District of Florida
    • November 21, 1988
    ...the cause of action accrues when the injured party discovers or should have discovered the invasion of his rights. See Lund v. Cook, 354 So.2d 940 (Fla. 1st DCA 1978). The court does not have a sufficient basis for determining whether Count IV, the unjust taking claim, is timely filed. The ......
  • Meehan v. Celotex Corp.
    • United States
    • Florida District Court of Appeals
    • February 5, 1985
    ...v. General Motors Corp., 225 So.2d 331, 334 (Fla.1969); see Senfeld v. Bank of Nova Scotia Trust Co., 450 So.2d 1157; Lund v. Cook, 354 So.2d 940 (Fla. 1st DCA), cert. denied 360 So.2d 1247 (Fla.1978), a cause of action in tort arises when the plaintiff knew or should have known of the exis......
  • Hearndon v. Graham
    • United States
    • Florida District Court of Appeals
    • April 14, 1998
    ...discovery or duty to discover the act constituting an invasion of his legal rights." (emphasis added). See also Lund v. Cook, 354 So.2d 940, 942 (Fla. 1st DCA 1978)(A cause of action accrues "with the aggrieved party's discovery or duty to discover the act constituting an invasion of his le......
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