Stewart, Nichole and Stewart v. Cheryl Smith, Cheryl Smith Realty, Inc., et al.

Matt Bernstein (Deland, FL) (E&O) Plaintiffs purchased a vacant lot with the intent to clear the land and build a home. After going under contract but before closing, the Seller’s real estate agent (the Insured) emailed the Plaintiffs’ agent, “Just making sure you notified the buyers that we informed you of the wetlands on the lot”, to which Plaintiffs’ agent quickly replied “Yes, the buyers have been notified”. A month later, the transaction closed, and Plaintiffs cleared the lot, but were then fined by the EPA for clearing protected wetlands. Plaintiffs sued the Insured, the seller, and their own agent for failing to disclose a material fact (the presence of wetlands on the property). We moved for Judgment on the Pleadings, as the Plaintiffs attached the email correspondence between the agents to their Complaint. The Judge granted our Motion after finding the Insured’s email to Plaintiffs’ agent constituted the necessary disclosure. We will be pursuing attorneys’ fees and costs pursuant to a “prevailing party” attorney’s fees provision in the subject contract.