Albert Brick, Individually and As Trustee, et al., Appellants, v. Okaloosa Title and Abstract Co., Inc., et al., Appellees, 404 F.2d 889 (5th Cir. 1968)

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US Court of Appeals for the Fifth Circuit - 404 F.2d 889 (5th Cir. 1968) December 5, 1968

Joe J. Harrell, Pensacola, Fla., Samuel Intrater, Washington, D. C., Harrell, Caro, Middlebrooks & Wiltshire, Pensacola, Fla., for appellants.

William Reece Smith, Jr., Sylvia H. Walbolt, Tampa, Fla., Robert P. Gaines, Patrick G. Emmanuel, Pensacola, Fla., Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, Fla., for appellees.

Before TUTTLE and AINSWORTH, Circuit Judges, and MITCHELL, District Judge.


This is an appeal from the judgment of the District Court dismissing count two of appellant's amended complaint because the substance of the complaint gave rise to liability in contract rather than tort and, further, dismissing the complaint upon the grounds of prescription.

It is well settled under Florida law that an action against an abstractor to recover damages for negligence in making or certifying an abstract of title does not sound in tort but must be founded on contract. Sickler v. Indian River Abstract & Guaranty Co., 142 Fla. 528, 195 So. 195 (1940).

The judgment of the District Court is affirmed.