369 So. 2d 992 | Fla. Dist. Ct. App. | 1979
KELLY TRACTOR COMPANY, Appellant,
v.
Donald GURGIOLO, Appellee.
District Court of Appeal of Florida, Third District.
Mershon, Sawyer, Johnston, Dunwody & Cole and Timothy J. Norris, Miami, for appellant.
Corlett, Merritt, Killian & Sikes, Miami and Gerald E. Rosen, North Miami Beach, for appellee.
Before PEARSON, HENDRY and HUBBART, JJ.
PER CURIAM.
The final judgment appealed from is reversed and the cause remanded to the trial court with directions to dismiss the plaintiff Donald Gurgiolo's complaint against the defendant Kelly Tractor Company on the ground that the cause of action sued upon was barred by the applicable four year statute of limitations under Section 672.2-725(1), (2), Florida Statutes (1967).
The plaintiff brought suit against the defendant in this cause, and thereafter obtained a final judgment entered upon a jury verdict, for breach of express warranty involving future performance of two engines purchased by the plaintiff from the defendant for a certain charter boat. Significant mechanical difficulties were experienced by the plaintiff upon delivery of the above engines in October 1968. Such difficulties extended continuously over a period in excess of 7 1/2 years until the plaintiff finally filed suit on June 30, 1976.
In our view, the cause of action sued upon accrued long before June 30, 1972, which thereby places the action outside the four year statute of limitations. Indeed, by June 1972, the plaintiff had experienced over 3 1/2 years of chronic mechanical breakdown involving these two boat engines and by that time had discovered, or should have discovered, that the defendant had breached its express warranties with reference to the future performance of the above engines. As such, the action herein was clearly barred by the four year statute of limitations. § 672.2-725(1), (2), Fla. Stat. (1967); Creviston v. General Motors Corp., 225 So.2d 331 (Fla. 1969); City of Miami v. Brooks, 70 So.2d 306 (Fla. 1954).
Reversed.