Toledo Park Homes v. Grant

• Decision Date: 29 February 1984
• Docket Number: No. 82-2607,82-2607
• Citation: 447 So.2d 343
• Parties: TOLEDO PARK HOMES and H.D.V. Construction Corp., Appellants, v. John A. GRANT, Jr., Appellee.
• Court: Florida District Court of Appeals

Page 343

447 So.2d 343

TOLEDO PARK HOMES and H.D.V. Construction Corp., Appellants, v. John A. GRANT, Jr., Appellee.

No. 82-2607.

District Court of Appeal of Florida,

Fourth District.

Feb. 29, 1984.

Rehearing Denied April 4, 1984.

Ephraim Collins, Margate, for appellants.

Peters, Pickle, Flynn, Niemoeller & Downs, Miami, and Jeanne Heyward, Miami, for appellee.

HERSEY, Judge.

This matter began as an action for breach of contract and professional malpractice. Pursuant to contract entered into and performed in 1977, appellee, a registered land surveyor, prepared various plats and surveys for appellees. One such sketch of survey failed to disclose an encroachment by easement on a particular lot. After sale of that lot its purchaser filed suit and recovered damages from appellee occasioned by the undisclosed easement. In response to the complaint initiating the present litigation appellee interposed a motion to dismiss. One basis for the motion was that the statute of limitations applicable to professional malpractice, Section 95.11(4), Florida Statutes (1981), barred the action.

The trial court granted the motion and subsequently entered a final judgment finding that it was the intent of the legislature to remove claims involving professional malpractice arising out of contractual relationships based on a written instrument from the five (5) year statute of limitations set forth in Section 95.11(2), Florida Statutes, such causes of action being governed instead by the two (2) year statute of limitations provided for in Section 95.11(4), Florida Statutes.

Appellant argues that the two year statute of limitations for professional malpractice does not apply, relying on Lund v. Cook, 354 So.2d 940 (Fla. 1st DCA), cert. denied, 360 So.2d 1247 (Fla.1978). We agree with this proposition and reject appellee's hypothesis that every activity subject to the jurisdiction of the Department of Professional Regulation constitutes a "profession" within the scope of the malpractice statute of limitations, Section 95.11(4), Florida Statutes (1981). To hold otherwise would bring activities such as embalming and cosmetology within the professional malpractice statute of limitations. We are confident the legislature had no such intention. Accordingly, we hold that the four year statute of limitations in Section 95.11(3), Florida Statutes (1981) (actually its predecessor) applies here. Accord : School Board of Seminole County v. GAF Corp., 413 So.2d 1208 (Fla. 5th DCA 1982), rev'd. sub. nom. on other grounds, Kelley v. School Bd. Seminole County, 435 So.2d 804, 805 n. 2 (Fla.1983). For contrary dicta see Lisbon Contractors, Inc. v. Miami-Dade Water & Sewer Authority, 537 F.Supp. 175 (S.D.Fla.1982).

Reversal of the final judgment is required, however, not because the wrong statute of limitation period was applied...