Craigside, LLC v. GDC View, LLC

• Decision Date: 25 August 2011
• Docket Number: No. 1D10–1283.,1D10–1283.
• Citation: 74 So.3d 1087
• Parties: CRAIGSIDE, LLC, a Florida Limited Liability Company, Appellant, v. GDC VIEW, LLC, a Florida Limited Liability Company, Appellee.
• Court: Florida District Court of Appeals

74 So.3d 1087

CRAIGSIDE, LLC, a Florida Limited Liability Company, Appellant,

v.GDC VIEW, LLC, a Florida Limited Liability Company, Appellee.

No. 1D10–1283.

District Court of Appeal of Florida, First District.

July 22, 2011.Rehearing Denied Aug. 25, 2011.

Robert C. Palmer, III of Wade, Palmer & Shoemaker, P.A., Pensacola, and Louis K. Rosenbloum of Louis K. Rosenbloum, P.A., Pensacola, for Appellant.

Jeffrey L. Burns of Anchors, Smith, Grimsley, P.L., Fort Walton Beach and L. Paul Sirmans of L. Paul Sirmans, P.A., Fort Walton Beach, for Appellee.

BENTON, C.J.

When Craigside, LLC (Craigside) sued GDC View, LLC (GDC), a developer in Walton County, for the return of moneys paid under a preconstruction contract for the purchase of a condominium, the trial court ruled that GDC had not breached the contract, and entered judgment accordingly. We reverse in part and remand, with directions that the trial court award Craigside interest on $900,000 at the statutory rate, from April 16, 2007, until the date GDC repaid Craigside $900,000, but otherwise affirm the judgment.

On September 2, 2004, Craigside contracted to purchase a waterfront condominium (unit 1950) from GDC for $1,125,000. Craigside paid the entire purchase price before construction began, depositing $225,000 with an escrow agent upon execution of the agreement, and remitting the balance of $900,000 in November of 2004. The contract required GDC “to complete the condominium unit ... within two (2) years of the date of this Agreement but in no event later than May 1, 2007,” allowing extensions only for “delays caused by events which would support a defense based on impossibility of performance for reasons beyond [GDC's] control.” The contract contained detailed provisions regarding the closing date,¹ and the consequences of any failure to close on time.²

On April 16, 2007, Craigside sent GDC's lawyer a letter, asserting GDC had failed to complete the condominium unit by the deadline, and saying: “Recently a letter was sent out by your office indicating that closing is anticipated on May 1, 2007. This is unacceptable to Craigside LLC. Please consider this letter as notice to your client that Craigside LLC considers GDC View, LLC in breach of the contract and further demands a return of all funds submitted ... with interest.” After GDC refused to accede to this demand, Craigside filed the complaint that began the present litigation, alleging GDC was in breach because it had failed to complete the condominium unit on time and had refused to return the moneys Craigside had paid, with interest.

At the ensuing bench trial, the main issue was the number of delay days to which GDC was entitled. The trial court ruled that GDC was entitled to at least 253 delay days, and that the unit was timely completed on April 23, 2007, in any event. Trial evidence also showed that GDC had sold the unit to a third party in July of 2008, and had subsequently (on August 26, 2008) returned $900,000 to Craigside, but had declined to refund the $225,000 initial deposit or to pay interest in any amount. Determining that GDC acted in accordance with the agreement when it sold the unit—because, the trial court reasoned, Craigside “fail[ed] to come to the ... closing[ ]” ³—the trial court concluded that GDC did not breach the agreement, and entered final judgment in favor of GDC on February 9, 2010.

While the parties are entitled to de novo review of the trial court's rulings with respect to the legal effect of the contract, we are bound by the trial court's findings of fact in a case, like the present one, where competent, substantial evidence supports the findings. See Zupnik Haverland, L.L.C. v. Current Builders of Fla., Inc., 7 So.3d 1132, 1134 (Fla. 4th DCA 2009) (“The lower court's ultimate factual determinations during a non-jury trial may not be disturbed on appeal unless shown to be unsupported by competent and substantial evidence or to constitute an abuse of discretion.” (citation omitted)); Imagine Ins. Co., Ltd. v. State ex rel. Dep't of Fin. Servs., 999 So.2d 693, 696 (Fla. 1st DCA 2008) (noting that a trial court's interpretation of a contract is a matter of law subject to de novo review).

Craigside argues that its not showing up for the closing was not a default, because GDC never gave Craigside the required notice of closing date; and that it was GDC who breached by selling the condominium unit to somebody else, without providing Craigside prior notice of termination as required by paragraph 6(A). In its April 16, 2007 letter, however, Craigside unequivocally informed GDC that Craigside was not going to close on unit 1950. In doing so, Craigside communicated an anticipatory repudiation which breached the agreement.

In dealing with anticipatory repudiations the law is clear that a repudiation gives rise to a claim for damages by the nonbreaching party. As stated in Restatement (Second) of Contracts § 253 (1979):

(1) Where an obligor repudiates a duty before he has committed a breach by non-performance and before he has received all of the agreed exchange for it, his repudiation alone gives rise to a claim for damages for total breach.

(2) Where performances are to be exchanged under an exchange of promises, one party's repudiation of a duty to render performance discharges the other party's remaining duties to render performance.

Therefore, the nonbreaching party is relieved of its duty to tender performance and has an immediate cause of action against the breaching party. Poinsettia Dairy Products, Inc. v. Wessel Co., 123 Fla. 120, 166 So. 306 (Fla.1936). This alone, however, does not entitle the nonbreaching party to damages. Anticipatory repudiation obviates the requirement that the conditions be performed, but not that they be performable.

As stated in the Restatement (Second) of Contracts § 254 (1979):

(1) A party's duty to pay damages for total breach by repudiation is discharged if it appears after the breach that there would have been a total failure by the injured party to perform his return promise....

... The holder of the duty based upon a condition precedent cannot profit from an anticipatory repudiation of a contract that he would have breached himself. It follows that if performance of the conditions precedent is excused the ability to perform them must still be shown.

Hosp. Mortg. Grp. v. First Prudential Dev. Corp., 411 So.2d 181, 182–83 (Fla.1982). See also Jones v. Warmack, 967 So.2d 400, 402 (Fla. 1st DCA 2007) (“If one party to an agreement has breached the agreement, the other party's failure to continue with the agreement is not considered a default of the contract.”).

Craigside's letter terminated the agreement prior to the occurrence of any default by Craigside (which would have entitled GDC to declare a default) at a time when GDC could have performed if Craigside had not breached. GDC had no obligation therefore to give notice that it considered Craigside to be in default. See Picard v. Burroughs, 304 So.2d 455, 456 (Fla. 1st DCA 1974) (“In order to successfully invoke a forfeiture provision in a contract for the sale and purchase of real estate, the party seeking the forfeiture must (in the absence of a specific provision in the contract to the contrary) first prove strict compliance with those provisions of the contract required to be complied with by the party seeking the forfeiture, or else prove that such compliance has been either excused or prevented by the party against whom the forfeiture is sought.”). See also Realty Sec. Corp. v. Johnson, 93 Fla. 46, 111 So. 532, 535 (1927) (“Nor is any notice [of forfeiture] necessary where the vendee has actually abandoned the contract, or has so acted as to create a reasonable belief on the part of the vendor that the vendee has abandoned the contract.”).

If GDC had formally given notice that it was electing under paragraph 6(A) to retain the $225,000 deposit, Craigside could have done nothing to alter that result. By then, Craigside's anticipatory repudiation put it in breach. “[W]here one party, even before the time for performance of the contract has arrived, renounces it to the other party, the latter may act on the renunciation, [and] treat the contract as broken.” Sullivan v. McMillan, 26 Fla. 543, 8 So. 450, 457 (1890). See also Realty Securities Corp., 111 So. at 535 (“ ‘A formal notice by the vendor may not, perhaps, be always necessary, for it is declared in some decisions, that any act of the vendor, of which the purchaser is, or must, in the nature of things, be informed—showing clearly and unequivocally that the vendor has elected to rescind the agreement, or to treat it as at an end—will operate the same as and take the place of a notice of such intention to the vendee; but the act, in order to produce this effect, must be wholly inconsistent with a continuance of the contract.’ ” (quoting Pomeroy's Spec. Perf. § 393 (3d Ed.))). “It is unquestionably the law that a vendee may waive the right to such a notice.” Id. (citation omitted).⁴

Craigside, in its complaint filed on May 8, 2007, sought return of all moneys paid under the agreement, with interest. The parties' agreement provided for a “Deposit” of $225,000 upon execution of the agreement, and for an “Additional Deposit” of $900,000 by October 1, 2004. In the event of a breach, Paragraph 6(A) entitled GDC to retain Craigside's “deposit” (singular) as liquidated damages. GDC was entitled to retain the $225,000 Craigside deposited at the time it executed the agreement, but not the $900,000 Craigside later paid.⁵ GDC acknowledged as much in returning the $900,000 to Craigside on August 26, 2008.

But GDC never paid Craigside any interest on the $900,000. “ ‘In all cases, either of tort or contract, where the loss is wholly pecuniary, and may be fixed as of a definite time, interest should be allowed as a matter of right, whether the loss is liquidated or unliquidated.... [T]he plaintiff will not be...