Bilow v. Benoit, BT-150
| Decision Date | 10 February 1988 |
| Docket Number | No. BT-150,BT-150 |
| Parties | 13 Fla. L. Weekly 406 Ellen BILOW, Appellant, v. Paul BENOIT, Appellee. |
| Court | Florida District Court of Appeals |
Glenda F. Swearingen, Marianna, for appellant.
Larry A. Bodiford of Hutto, Nabors & Bodiford, Panama City, for appellee.
Ellen Bilow appeals from a final judgment denying her prayer for specific performance of a contract for the sale of real property and dismissing her claim for damages. She contends that (1) the trial court erred in denying her request for specific performance in count I of the complaint based upon affirmative defenses which were not raised in any pleadings and only raised at final argument; (2) her actions, after receiving notice of appellee's default, did not constitute abandonment of the executed contract; and (3) her use of certain deposit proceeds, prior to appellee's default and pursuant to the written agreement of the parties, did not justify the trial court's ruling that such use constituted forfeiture.
The record reveals the following facts: On August 22, 1986, the parties entered into a contract prepared by a real estate broker by which Benoit agreed to purchase certain real property located in Jackson County from Bilow. The contract established a purchase price of $160,000, required a deposit of $5,000, and set a closing date on September 29, 1986. A handwritten clause was added to the contract printed form which stated:
It is understood and agreed that out of the above deposit that the mortgage payments be brought to date and $1500 be paid to seller for her immediate needs. Seller will pay documentary stamps on deed.
(R. 5). About the first week of September 1986, Benoit learned that his loan application had been rejected by Citizens State Bank. After attempting to secure a loan from other institutions, Benoit notified the real estate broker that there would be no closing because he was not going through with the deal.
The deal did not close, and Bilow filed her complaint for specific performance and damages. In his answer, Benoit raised an affirmative defense alleging that Benoit also filed a counterclaim seeking reformation of the original contract to include such provision, alleging that the contract failed to express the real agreement of the parties.
A nonjury trial on the issues raised by the complaint, answer and counterclaim was held on February 20, 1987. Estelle Fordham, the real estate broker involved in the transaction, testified that she prepared the real estate contract; that according to the terms of the contract and her understanding of the agreement between the parties, there was no condition of financing imposed upon appellee's performance; and that Benoit first notified her that he was not going through with the deal on September 24, 1986, because "Citizens Bank wouldn't let him have the money." Fordham stated that she suggested alternative methods of financing, such as a wraparound mortgage, but Benoit "didn't go for it" and, further, that he said "he would rather go ahead and forfeit the deposit and get out of it because he had one bad marriage and he didn't want to have another one and that he just wanted to get out, his wife was opposed to it." To Fordham's knowledge Benoit never offered or paid anything to Bilow in exchange for his release from the contract. Fordham further stated that the contract gave the seller, Bilow, the option to retain the deposit as liquidated damages or, in the alternative, to seek specific performance.
Appellant Bilow testified that the written contract reflected the agreement of the parties. She stated that when she was notified Benoit was not going through with the deal she had already closed her ice cream and sandwich shop and was in the process of moving off the property. Bilow testified that she offered to be Benoit's partner or to give him a wraparound mortgage, but that he refused her offer. She also testified that Benoit had told her many times that he had other sources of money available and that he could get financing. Bilow testified that the $5,000 deposit was used as follows: $3,200 was spent on lights, gas, wages, and mortgage payments, and the remainder was kept in Mrs. Fordham's escrow account.
Appellee Benoit testified he told Mrs. Fordham and Bilow that unless he was able to obtain Small Business Administration financing through Citizens State Bank he was not going to be able to close the contract, and that he told Bilow he was not interested in a partnership. He further stated that, at one point, his attorney requested Ms. Bilow to return the $5,000 deposit, but as of the date of the hearing she had not done so. Benoit testified that Mrs. Fordham had told him the deposit was gone, that Ms. Bilow had used it all.
In the final judgment the court expressly found that the contract for sale of the real property (1) was "abandoned by the parties after Defendant [Benoit] advised he was not able to close due to financing and the parties attempted to renegotiate the transaction" and (2) that Benoit forfeited his $5,000 deposit and that the plaintiff [Bilow] "retained the same by partial use of the deposited funds and retention of the balance thereof by the Seller's agent." The court denied Bilow's prayer for specific performance, and it dismissed as moot count two of Bilow's complaint seeking damages and Benoit's counterclaim.
Bilow first contends that the affirmative defense of forfeiture was not raised in the pleadings nor tried by the express or implied consent of the parties, and that the trial court erred in relying on it as the legal basis for the final judgment. Benoit claims the issues of liquidated damages and forfeiture were raised by him without objection, by Bilow's counsel during Bilow's case-in-chief, and by Bilow herself, and that this issue was tried before the lower court.
With certain exceptions not presently involved, the rule is well established that affirmative defenses not alleged in the answer or a motion attacking the sufficiency of the complaint are deemed waived. Fla.R.Civ.P....
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