Dewitt v. U. S. Title Co. of Jacksonville

407 So. 2d 385, 1981 Fla. App. LEXIS 21974

Opinion

ROBERT P. SMITH, Jr., Chief Judge.

There is no error in the trial court’s dismissal with prejudice of Counts I and II of plaintiffs’ second amended complaint. Count III, however, marginally states a cause of action by alleging that continuing the transaction described by other incorporated allegations, plaintiffs’ attorney on February 28, 1978, requested defendant U. S. Title to determine and report the existence of record covenants or restrictions governing construction on the property, and that defendant, undertaking to do so, negligently performed the duty undertaken, to plaintiffs’ subsequent damage. Whatever may be defendant’s affirmative defenses, and however difficult may be plaintiffs’ proof concerning the extent of defendant’s February 28, 1978 undertaking and plaintiffs’ damage sustained in reliance, those allegations withstand a motion to dismiss and require an answer. See Kovaleski v. Tallahassee Title Co., 363 So.2d 1156 (Fla. 1st DCA 1978).

REVERSED.

SHAW and JOANOS, JJ., concur.