MODRICH v. BROWARD TITLE CO.

• Decision Date: 27 June 2001
• Docket Number: No. 4D00-3771.,4D00-3771.
• Citation: 789 So.2d 452
• Parties: Mark J. MODRICH and Karen E. Modrich, Appellants, v. BROWARD TITLE COMPANY, a Florida corporation, and P & L Surveyors, Inc., a Florida corporation, Appellees.
• Court: Florida District Court of Appeals

789 So.2d 452

Mark J. MODRICH and Karen E. Modrich, Appellants, v. BROWARD TITLE COMPANY, a Florida corporation, and P & L Surveyors, Inc., a Florida corporation, Appellees.

No. 4D00-3771.

District Court of Appeal of Florida, Fourth District.

June 27, 2001.

Ronald S. Asnes of Law Offices of Ronald S. Asnes, Boca Raton, for appellants.

Ronald P. Gossett of Gossett & Gossett, P.A., Hollywood, for appellees.

STONE, J.

We reverse a final summary judgment entered in favor of P & L Surveyors Inc. on Mark and Karen Modrich's (Modrich) fraud and negligence claims.

Our review of the record reflects that P & L Surveyors failed to meet its burden of demonstrating both the absence of genuine issue of material fact and that it is entitled to a judgment as a matter of law. See Holl v. Talcott, 191 So.2d 40 (Fla.1966)

; Albelo v. S. Bell, 682 So.2d 1126 (Fla. 4th DCA 1996).

In the complaint, Modrich claims that P & L Surveyors misrepresented the status of easements on the property, that P & L should have known of the falsity of that representation, and that Modrich justifiably relied on P & L's misrepresentation. Viewed in the light most favorable to Modrich, we find that a genuine issue of fact exists as to each of these material elements.

The contract in question required the following with regard to transfer of title:

10. TITLE: Seller will convey marketable title to the Property ...

(a) Title Evidence: Title evidence will show legal access to the Property and market title of record in Seller in accordance with the current title standards adopted by the Florida Bar, subject only to the following title exceptions, none of which prevent residential use of the Property: covenants, easements and restrictions of record; matters of plat, existing zoning and government regulations, oil, gas and mineral rights of record if there is not right of entry; current taxes; mortgages that Buyer will assume; and encumbrances that Seller will discharge at or before closing....

* * *

(c) Survey: Buyer may, prior to the Closing and at Buyer's expense, have the Property surveyed and deliver written notice to Seller, within 5 days from receipt of survey but no later than closing, of any encroachments on the Property, encroachments by the Property's improvements on other lands or deed restriction or zoning violations.

P & L argues that Modrich cannot prove justifiable reliance, as Modrich closed on the transaction notwithstanding questions raised during the real estate closing...