Casavan v. Land O'Lakes Realty, Inc., of Leesburg, 88-128
| Decision Date | 23 March 1989 |
| Docket Number | No. 88-128,88-128 |
| Citation | 542 So.2d 371,14 Fla. L. Weekly 761 |
| Parties | 14 Fla. L. Weekly 761 George A. CASAVAN, et al., Appellants/Cross Appellees, v. LAND O'LAKES REALTY, INC., OF LEESBURG, et al., Appellees/Cross Appellants. |
| Court | Florida District Court of Appeals |
Jackson O. Brownlee, of Law Offices of Jackson O. Brownlee, P.A., Tavares, for appellants/cross appellees.
Robert L. Appleget, Jr., of Landt, Appleget & Wiechens, Ocala, for appellees/cross appellants.
After a real estate transaction between the Carharts, as sellers, and the Casavans, as buyers, fell through, the broker, Land O' Lakes Realty, Inc., claiming no interest in the fund, filed an interpleader action against both parties for a determination of who was entitled to $10,800 which had been deposited with the broker in connection with the transaction. The parties then crossclaimed against each other for the deposit, damages and specific performance.
The jury awarded the Carharts $4,320.00 for rent damages, specifically finding no actual damages for breach of the contract. Thereafter, the trial judge entered a JNOV for the Casavans as to a $5,800.00 portion of the interpled funds, and awarded the Carharts $9,000.00 for attorney's fees and costs, as the "prevailing party." 1 The Carharts filed a cross-appeal, but have failed to file any cross-appeal briefs. We reverse, in part.
The Casavans entered into a written contract to purchase from the Carharts a house and lot in Leesburg, Florida for $37,000. At the time the contract was executed, they deposited a total of $5,000 as required under the sales contract, which was held in escrow by the broker. Pursuant to the contract, the Casavans were permitted to occupy the property at a rental of $400 per month after the contract was accepted, with the provision that the rent would be applied to the purchase price. The Carharts insisted, however, on a firm July 10 closing date and, if the Casavans remained in possession past July 10, they would be required to sign a rental agreement.
On July 10th no closing took place because the mortgage papers being prepared for the Casavans were not ready. To demonstrate their good faith and continued willingness to close, the Casavans deposited an additional $5,800 with the broker. This sum was the balance the Casavans needed to close, in addition to the mortgage proceeds they contemplated receiving. The Carharts, however, refused to close because the closing date had passed, and insisted that the Casavans execute a written lease agreement or vacate the premises. The Casavans refused to sign a lease agreement, remained in possession of the property and filed a specific performance suit in November which they later dismissed. They vacated the property at the end of February--some 7 1/2 months after the July 10 closing date, paying no rent for that period.
The contract between the parties provided that if buyers should fail to perform, "the deposit(s) paid by the Buyer may be retained by ... the ... Seller as liquidated damages ... and in full settlement of all claims." A liquidated damages clause is enforceable where damages are not readily ascertainable at the time the contract is entered into by the parties. See, e.g., Osceola County v. Bumble Bee Construction, Inc., 479 So.2d 310 (Fla. 5th DCA 1985); McNorton v. Pan American Bank of Orlando, 387 So.2d 393, 396 (Fla. 5th DCA 1980), rev. denied, 392 So.2d 1377 (Fla.1981), and cases cited therein. The sellers, however, chose to waive that option by seeking actual damages in their crossclaim, instead of a forfeiture of the $5,000 deposit. Mr. Carhart testified at trial that he was not claiming the deposit, but only the rent which he claimed was due.
Separate and apart from any instructions as to the claim for rent, the jury was instructed that if they determined that the Casavans breached the contract, they should award the Carharts such amount as the evidence showed would compensate them for their loss. The jury found that the Casavans had breached the contract, but that the Carharts had suffered no damages as a result. Clearly, the issue of whether the Carharts could retain the initial $5,000 deposit as liquidated damages was never presented, nor was such a finding made by the final judgment.
The jury's verdict pertaining to rent damages in the amount of $4,320 is not supported by the record. Appellee argues that the award can be justified on the theory that the Carharts are entitled to claim double rent pursuant to section 83.06 2 or section 83.58, Florida Statutes (1987). Section 83.06 applies only to "nonresidential tenancies," and requires a demand for double rent. It clearly is not applicable here.
Nor do we think section 83.58 applies to this case. It provides:
If the tenant holds over and continues in possession of the dwelling unit or any part thereof after the expiration of the rental agreement without the permission of the landlord, the landlord may recover possession of the dwelling unit in the manner provided for in s. 83.59 [F.S.1973]. The landlord may also recover double the amount of rent due on the dwelling unit or any part thereof, for the period during which the tenant refuses to surrender possession. [Emphasis added].
This is not a suit for recovery of possession of property after the expiration of a rental agreement. Possession of the premises was delivered to the Carharts prior to the commencement of this litigation.
The Carharts were entitled to receive the fair rental value of the premises for the time it was occupied by the Casavans, and the record supports no more than $400 per month for a total of eight months, or $3,200. Accordingly, we reduce the rent damage award to $3,200.
The subsequent payment of $5,800 was correctly ordered to be repaid to the Casavans because this was not a part of any required deposit, but had been paid by them to evidence their good faith intention to close when the mortgage papers were completed. Of the remaining funds in escrow, $1,014.28 had been awarded to the interpleading broker as attorney's fees and costs. Thus, of the total of $10,800 only $3,985.72 remained to be distributed, out of which the Carharts are entitled to rent of $3,200, the balance to be paid to the Casavans. The Casavans, not the Carharts, are thus the "prevailing parties," since they are entitled to a greater award out of the interpleaded funds than are the Carharts.
That portion of the final judgment which directs the repayment of $5,800 to the Casavans is affirmed. That portion of the final judgment which awards to the Carharts damages of $4,320 plus attorney's fees of $9,000 and costs is reversed and the case is remanded with directions to modify the judgment so as to award the Carharts only the sum of $3,200 out of the escrowed funds, with any remaining balance to be paid to the Casavans, and for such further proceedings as are consistent herewith.
AFFIRMED IN PART; REVERSED IN PART and REMANDED.
The result achieved by the majority opinion literally snatches defeat for the Carharts (the sellers) out of the jaws of their rightful victory. It is contrary to the crucial determination by the jury in this case that the Casavans (the buyers) breached the real estate contract by failing to close timely. To now deny the Carharts the full amount of their damages, which they proved in this case, and to deny them their rights to attorney's fees and costs as the "prevailing party" under the real estate contract just "ain't right."
Part of the difficulty in this case is caused by the context in which the jury trial took place. The dispute was staged in the form of an interpleader suit to resolve which party was entitled to $10,800.00 in funds deposited with a real estate broker. The Casavans sought damages and other just and equitable relief. 1 The Carharts sought damages both for breach of the real estate contract, and for loss of use of the property due to the Casavans' wrongful possession of it for seven and one-half months past the closing date, rent-free. 2
The real estate contract provided that if the Casavans breached the contract, they would forfeit their $5,000.00 deposit made to the broker when the contract to purchase was executed. 3 Such liquidated damage clauses are enforceable. 4
The jury decided by special verdict form that the Casavans breached the contract. They were not entitled to any relief here. The trial court, however, directed that the Casavans were entitled to regain $5,800.00 of the interpled funds, because the testimony at trial established without dispute, that these monies were paid to the broker by the Casavans on the day the closing was set, in an effort to demonstrate their good faith and to win a time extension of the closing. These funds were not paid pursuant to the real estate contract.
The trial court's judgment makes no specific mention of the $5,000.00 deposit made under the contract which formed the balance of the funds interpled in the court. However, the judgment's only sensible construction is that the Casavans receive $5,800 and the Carharts receive $5,000 of the interpled funds. Clearly, all of the interpled funds must be disposed of by the interpleader judgment. Otherwise, the court or the broker would end up with $5,000 windfall. In any event, paragraph 4 of the judgment does provide that whatever excess funds remain after the Casavans recover their $5,800.00 goes to the Carharts, i.e., $5,000.00.
I agree with the majority opinion that all of the jury's actual damage award to the Carharts cannot be sustained. They were awarded $4,320.00. The evidence in this record supports (at best) only an award of $3,200.00. I would affirm as to that amount.
The Carharts argued they were entitled to claim double rent because of the Casavans' seven and one-half month's retention of...
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