Lack of Factual Detail in Record Raised Issues Concerning Statute of Limitations in Real Estate Transaction Lawsuit

In Xavier v. Leviev Boymelgreen Marquis Developers, LLC, 3D11-549(Fla. 3d DCA, Nov. 21, 2012), Maiko A. Xavier and Gricell B. Perez (“Plaintiffs”) sought review of the trial court’s dismissal with prejudice of their real estate transaction lawsuit against Leviev Boymelgreen Marquis Developers (“Defendant”) on the grounds that the lawsuit was filed outside the four-year statute of limitations.

The Plaintiffs alleged that they entered into a pre-construction sales agreement on August 2, 2005 to purchase a city view condominium unit in the Marquis, which was being built by the Defendant. The sales agreement provided for, among other things, an initial deposit of $87,500, a subsequent deposit of $87,500, cancellation within certain time limits and return of deposits within thirty days of cancellation. The Plaintiffs further alleged that they cancelled the sales contract on the same day based upon the Defendant’s oral representation that they could “swap” the city view unit for a bay view unit. Relying on the understanding that the Plaintiffs would be provided a written agreement reflecting the bay view unit, they left the initial deposit with the Defendant. The Plaintiffs later made the second deposit at an unspecified date. The Plaintiffs alleged that they asked on undated occasions about the delivery of the corrected written agreement. However, several years passed without delivery of the corrected agreement, and the Defendant held the deposits. The Plaintiff stated that they had no reason to worry until almost four years later when the Defendant gave formal notice that the closing on the city view unit would be on August 17, 2009. On November 10, 2009, the Plaintiffs filed suit against the Defendant seeking the return of the deposits. The Defendant’s motion to dismiss the lawsuit on the basis that the statute of limitations had run was granted. The Third District Court of Appeal reversed and remanded the order of dismissal.

In its reasoning, the Third District Court of Appeal discussed the applicable statute of limitations. Had the lawsuit involved a standard cause of action for the violation of the terms of a real estate contract, it would have been time-barred. However, the Plaintiffs stated causes of action for unjust enrichment, conversion and fraudulent inducement. The statute of limitations for fraud is four years beginning to run “from the time that the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence.” § 95.031(2)(a), Fla. Stat. However, it could not be said “as a matter of law that the exercise of due diligence would have caused the [Plaintiffs] to have discovered the alleged fraud more than four years before November 10, 2009.” Xavier, 3D11-549. A much more detailed record would be required to make such a determination.

Similarly, the statute of limitations for conversion and unjust enrichment are four years. The Third District Court of Appeals stated, “[t]he determination as to when these causes of action accrued and when the statute of limitation expired is also dependent on the development of a more detailed factual record.” Id.

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