Fabel v. Masterson

• Citation: 951 So.2d 934
• Decision Date: 28 February 2007
• Docket Number: No. 4D05-4395.,4D05-4395.
• Parties: Warren M. FABEL, Appellant, v. Doreen L. MASTERSON and Frank Zammiello, Appellees.
• Court: Court of Appeal of Florida (US)

951 So.2d 934

Warren M. FABEL, Appellant, v. Doreen L. MASTERSON and Frank Zammiello, Appellees.

No. 4D05-4395.

District Court of Appeal of Florida, Fourth District.

February 28, 2007.

Rehearing Denied April 20, 2007.

Robert Rivas of Sachs, Sax & Klein, Tallahassee, for appellant.

John C. Dotterrer and Jenny Torres of John C. Dotterrer, Counsellors at Law, P.A., Palm Beach, for appellees.

MAY, J.

A failed real estate transaction resulted in a summary judgment for the buyers. The seller appeals the judgment, and raises four issues. Among them, he argues that the trial court erred in finding the buyers were excused from complying with the contract's deposit requirements because of a lis pendens filed against the property. We agree and reverse.

The seller and his former wife divorced on August 12, 1996. As part of the dissolution, the former wife executed a quit claim deed for the marital home. The seller/former husband was ordered to pay the former wife a total of $366,000, of which $291,000 was to be paid upon the sale of the marital home or within three years.

Having failed to receive the funds within three years, the former wife filed a notice of lis pendens in July 2000. The lis pendens did not quantify the outstanding debt. On November 9, 2000, the seller filed a motion to dissolve the lis pendens, asserting the former wife had no interest in the marital home and the lis pendens adversely affected his ability to sell it.

On December 2, 2000,¹ the seller entered into an agreement to sell the property to Doreen Masterson for $2,350,000. Although not a party to the original contract, Frank Zammiello² was to finance the purchase. The closing date was set for February 1, 2001.

The contract required an initial deposit of $117,500 at the time of signing and a final deposit of $117,500 within ten days. The buyers failed to make either deposit even though they were unaware of the lis pendens until two years into the litigation.

A few weeks after entering into the contract, the seller sued Masterson and ultimately Zammiello. The seller claimed the buyers breached the contract by failing to make the requisite deposits. The buyers claimed the seller had refused to allow an inspection, thereby relieving them from making the deposits.

On January 19, 2001, the family court heard, but did not rule on, the seller's motion to dissolve the lis pendens. Meanwhile, the original closing date passed on February 1, 2001, with the thirty-day cure period expiring on March 3, 2001. The family court denied the motion to dissolve on March 29, 2001, finding a nexus between the former wife's claim and the property. The court found the potential adverse affect of the lis pendens on the seller's ability to sell the property insufficient cause to dissolve it.

On October 26, 2001, the seller entered into an amended settlement agreement with the former wife, in which the former wife agreed to release the lis pendens in exchange for $1,450,000 upon the sale of the home. The family court accepted the amended agreement on December 19, 2001. Two days later, the seller and former wife executed a warranty deed conveying the property to a new buyer. The lis pendens was removed from the property approximately a week later.

In the seller's separately filed litigation, the trial court heard the original buyers' motion for summary judgment on October 14, 2005. The seller argued that he was entitled to the deposit monies because the buyers breached the contract by failing to make the required deposits. The buyers now argued that they were relieved from making the deposits because the former wife's lis pendens had...