No. 88-02363.

545 So.2d 903 (1989)

CORNERSTONE COMMUNITIES, INC., and Elysium Homeowners Association, Inc., Appellants, v. CITY OF CLEARWATER, a Municipal Corporation in the State of Florida, Appellee.

District Court of Appeal of Florida, Second District.

March 31, 1989.

Attorney(s) appearing for the Case

Patrick T. Maguire, Clearwater, for appellants.

M.A. Galbraith, Jr., City Atty., Clearwater, for appellee.

FRANK, Judge.

The appellants, Cornerstone Communities, Inc., and Elysium Homeowners Association, Inc., have appealed from an order dismissing with prejudice their complaint seeking declaratory and equitable relief as the result of an agreement in which annexation would follow from the City of Clearwater providing sewer and water services to property owners in an area located beyond the City's boundaries. The appellants alleged, in an undefined conclusory manner, that the City had an obligation to provide the services without the contractual commitment to annexation by the City.

In determining to reverse the trial court's dismissal order we emphasize that we have not passed upon any substantive aspect of this dispute. We have confined our disposition of this matter wholly to the question of whether the trial court erred in not according the appellants an opportunity to replead their cause of action to allege, if possible, the pre-agreement existence of a duty to provide such services free from the condition of annexation. See, e.g., Crews v. Ellis, 531 So.2d 1372, 1375 (Fla. 1st DCA 1988) (where a complaint is not clearly unamendable, it is error for the trial court to dismiss that complaint with prejudice).

Reversed and remanded for further proceedings not inconsistent with this opinion.

RYDER, A.C.J., and ALTENBERND, J., concur.


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