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Florida Third DCA affirms trial court’s dismissal of plaintiff’s negligence complaint against surveyor, rejects application of delayed discovery doctrine to statute of limitations bar

On April 10, 2019, in Broz v. R.E. Reece, No. 3D18-273, the Florida Third DCA affirmed the trial court’s dismissal of a homeowner’s negligence complaint against the surveyor who prepared the property description for the deed to the plaintiff’s residential duplex property.  The plaintiff alleged in her complaint  that the surveyor’s error caused her to be served with a foreclosure complaint that should have been directed to the owner of the other half of the duplex.  Although the foreclosure complaint was served on her in January 2007, the plaintiff did not file her lawsuit against the surveyor until July 2011.  The parties agreed that the applicable statute of limitations period was four years under Section 95.11(3(a), Florida Statutes. The trial court dismissed the complaint on the basis that the four-year period was deemed to have begun running when the foreclosure complaint was served on the plaintiff, thereby barring the complaint since it was filed approximately five months after the expiration of the statute of limitations period.  The plaintiff argued on appeal that the delayed discovery doctrine should be applied, apparently on the theory that she did not actually discover the surveyor’s error until sometime within the applicable statute of limitations period.  The Third DCA noted that the plaintiff acknowledged that the misdirected foreclosure complaint led to her discovery of the error.  The Third DCA in any event refused to apply the delayed discovery doctrine, noting that it had previously construed the delayed doctrine “cautiously and narrowly,” restricting the application of the doctrine in accordance with Florida Supreme Court precedent to cases of intentional torts arising from childhood sexual abuse and “specific historical and procedural facts” not present in the instant case.   See  Cisco v. Diocese of Steubenville, 123 So. 3d 83, 84 (Fla. 3d DCA 2013).
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