Duncan Properties, Inc. v. Key Largo Ocean View, Inc., 77-686
| Decision Date | 11 July 1978 |
| Docket Number | No. 77-686,77-686 |
| Citation | 360 So.2d 471 |
| Parties | DUNCAN PROPERTIES, INC., a corporation, Appellant, v. KEY LARGO OCEAN VIEW, INC., a Florida Corporation, Appellee. |
| Court | Florida District Court of Appeals |
Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellant.
McCaughey, Knaust & Evans and Barry J. McCaughey, St. Petersburg, for appellee.
Before PEARSON and HENDRY, JJ., and CRAWFORD, GRADY, L. (Ret.) Associate Judge.
Appellant/plaintiff appeals from a final judgment rendered in favor of appellee/defendant. In sum, the final judgment dismissed with prejudice appellant's complaint to foreclose a certain mortgage executed by the parties and entered judgment on appellee's counterclaim for rescission of said mortgage.
Factually, this proceeding commenced upon appellant's filing of an action for the foreclosure of a purchase money mortgage (secured by a promissory note in the sum of $250,000.00) on real property located in Monroe County, Florida. Appellee answered the complaint by denying any default under the note and mortgage. In addition, appellee filed affirmative defenses which, Inter alia, alleged that as consideration for the payment at time of closing of some $50,000.00, appellant was to release to appellee two of the fourteen acres the latter had purchased from the lien of the mortgage. It was alleged that appellant had refused to do so, and that such refusal amounted to a failure of consideration, thus relieving appellee of its obligation to pay the note. Appellee also filed a counterclaim for rescission of the note and mortgage based upon the aforementioned failure of consideration.
After discovery and pretrial conference, the cause proceeded to a non-jury trial. At its conclusion, the chancellor entered a final judgment in which the court found (1) that upon closing, appellant was to release the two acres of property from the effect of the mortgage and that said release was an essential element of the consideration from the purchase of the property; (2) that as such, the release amounted to a dependent covenant to the agreement; (3) that appellee had failed to make any payments on the note; and (4) that no adequate remedy existed at law to rectify the situation.
Based upon the above findings, the chancellor ordered that the mortgage foreclosure action be dismissed with prejudice and that appellee be permitted to rescind and/or cancel the note and mortgage. In addition, as a corollary to the rescission, and in an attempt to restore the parties to the status quo, the chancellor awarded appellee $64,276.90 on its counterclaim which represented the return of the $50,000.00 down payment, as well as various closing costs and expenses. Petition for rehearing was filed and subsequently denied, and this appeal follows.
While four points have been raised on appeal, we believe that the gist of appellant's contentions can be stated as follows:
Whether the record will support appellee's counterclaim for rescission and/or cancellation of the note and mortgage.
Based upon our analysis of the record, together with the applicable case law, it is our opinion that the equitable remedies of rescission and/or cancellation were not available to appellee. We explain.
Generally, in order to sustain an action for rescission, one must allege grounds amounting to fraud, misrepresentation, overreaching or undue influence. Richard Bertram & Co. v. Barrett, 155 So.2d 409 (Fla.1st DCA 1963). These allegations were absent from appellee's counterclaim. Rather, appellee sought rescission solely upon the basis of a want or failure of consideration. Generally, without the accompaniment of one of the aforementioned grounds, want or failure of consideration will not suffice to permit a...
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Hall v. Burger King Corp.
...has no adequate remedy at law." Collier v. Boney, 525 So.2d 971, 972 (Fla. 1st DCA 1988); see also Duncan Properties, Inc. v. Key Largo Ocean View, Inc., 360 So.2d 471 (Fla. 3d DCA), appeal dismissed, 362 So.2d 1054 (Fla.1978). The failure to adequately allege this element warrants the dism......
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...denied, 180 So.2d 656 (Fla.1965).4 See Williamson v. Stephens, 411 So.2d 286 (Fla. 1st DCA 1982); Duncan Properties, Inc. v. Key Largo Ocean View, Inc., 360 So.2d 471 (Fla. 3rd DCA 1978), appeal dismissed, 362 So.2d 1054 (Fla.1978).5 Before granting rescission compliance with applicable UCC......
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...by a lower court. Central Florida Antenna Service, Inc. v. Crabtree, 503 So.2d 1351 (Fla. 5th DCA 1987); Duncan Properties v. Key Largo Ocean View, Inc., 360 So.2d 471 (Fla. 3d DCA), dismissed, 362 So.2d 1054 (Fla.1978). Here, we are essentially reviewing an arbitrator's award which finds t......
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Chapter 7-3 Affirmative Defenses
...2005).[88] Kresmer v. Tonokaboni, 356 So. 2d 1331, 1332 (Fla. 3d DCA 1978).[89] Duncan Properties, Inc. v. Key Largo Ocean View, Inc., 360 So. 2d 471, 472-73 (Fla. 3d DCA 1978).[90] Meyerson v. Boyce, 97 So. 2d 488, 489 (Fla. 3d DCA 1957).[91] JAK Capital, LLC v. Adams, 306 So. 3d 1285, 128......
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Chapter 7-3 Affirmative Defenses
...2005).[81] Kresmer v. Tonokaboni, 356 So. 2d 1331, 1332 (Fla. 3d DCA 1978).[82] Duncan Properties, Inc. v. Key Largo Ocean View, Inc., 360 So. 2d 471, 472-73 (Fla. 3d DCA 1978).[83] Meyerson v. Boyce, 97 So. 2d 488, 489 (Fla. 3d DCA 1957).[84] Parker v. Dinsmore Co., 443 So. 2d 356, 358 (Fl......