Fence Wholesalers of America, Inc. v. Beneficial Commercial Corp.

• Decision Date: 13 March 1985
• Docket Number: No. 83-1497,83-1497
• Citation: 10 Fla. L. Weekly 686,465 So.2d 570
• Parties: 10 Fla. L. Weekly 686, 40 UCC Rep.Serv. 1584 FENCE WHOLESALERS OF AMERICA, INC., Mario Auricchio, and Lise Auricchio, Appellants, v. BENEFICIAL COMMERCIAL CORPORATION, Appellee.
• Court: Florida District Court of Appeals

Page 570

465 So.2d 570

10 Fla. L. Weekly 686, 40 UCC Rep.Serv. 1584

FENCE WHOLESALERS OF AMERICA, INC., Mario Auricchio, and Lise Auricchio, Appellants, v. BENEFICIAL COMMERCIAL CORPORATION, Appellee.

No. 83-1497.

District Court of Appeal of Florida Fourth District.

March 13, 1985.

Richard D. Heller of Niles, Dobbins & Heller, Fort Lauderdale, for appellants (withdrawn as counsel after brief was filed).

R. James Pelstring of Robey & Pelstring, P.A., Miami, for appellee.

GLICKSTEIN, Judge.

This is an appeal of separate final judgments in an identical amount against each of the three appellants, and of an order taxing costs and attorney's fees to them. We affirm in all respects except attorney's fees, the judgment for which we remand for reduction by the amount which represents an award for travel time, when there was no showing a competent local attorney could not be obtained. Gwen Fearing Real Estate, Inc. v. Wilson, 430 So.2d 589 (Fla. 4th DCA 1983); Chandler v. Chandler, 330 So.2d 190 (Fla. 2d DCA 1976).

A dealer arranged a sixty month lease-purchase agreement for a truck tractor between lessee Fence Wholesalers of America, Inc. and lessor Parliament Leasing Corporation, a subsidiary of Beneficial Commercial Corporation. Mario and Lise Auricchio were individually guarantors for the lessee.

After the lease had been in effect for about a year, appellants' counsel notified Beneficial by letter that his client could no longer make payments on the lease or retain possession of the tractor, but that Fence Wholesalers had located a buyer for the tractor for $32,000 provided the appellants were completely released from the terms of the lease. The letter said further that if these terms were not satisfactory Beneficial should repossess the vehicle, as his clients would make no further payments.

Beneficial rejected the purchase offer because, according to its litigation coordinator, Beneficial was unwilling to release the lessee and the guarantors. Beneficial caused the dealer's salesman to pick up the tractor. The salesman signed a receipt, prepared by Fence Wholesalers' employee on counsel's advice, saying the undersigned terminates the lease and any further obligations of Fence Wholesalers. Shortly thereafter the dealer privately purchased the truck from Beneficial for $30,000. There was no notice to Fence Wholesalers or the guarantors of Beneficial's intention to sell. Mario Auricchio testified he understood from telephone conversations with Parliament Leasing in Morristown, New Jersey, that they would not release him or his company from the lease purchase agreement terms unless they were satisfied in full; he expected Parliament would pick up the tractor, and he did not think the dealer's salesman who picked up the tractor was Parliament's agent. Auricchio said he did not know what effect the salesman's signing of the receipt would have.

Beneficial sued for the rent for the remainder of the term of the lease, less the proceeds of the tractor sale. After non-jury trial the court entered separate final judgments in the amount of $20,830 against each of the three defendants.

According to the lease agreement, in the event of default the lessor could choose one or more of several stated remedies including (a) take possession of the equipment without releasing the lessee from its obligation to pay the rent due under the agreement; (b) sell the equipment at public or private sale, in which event the lessee's obligation to pay monthly rent would cease to accrue; (c) hold, keep idle or lease the equipment to others, with any lease proceeds to be credited against the lessee's rent obligation. The agreement listed two additional stated remedies, as well as exercise of any other remedies available at law.

If Beneficial had been granted recovery under more than one of the stated remedies, that could have constituted a double recovery, depending on what combination of remedies was selected. Such double recovery is unlawful because repugnant to public policy. See Bidwell v. Carstens, 316 So.2d 264 (Fla.1975); Cutler Gate Building Corp. v. United States Leasing Corp., 165 So.2d 207 (Fla. 3d DCA 1964); and Monsalvatge and Company of Miami, Inc. v. Ryder Leasing, Inc., 151 So.2d 453 (Fla. 3d DCA 1963). However, by its terms, "[a] lease, whether of real or personal property, may create or defeat the right to the value of the lease as damages even upon return of the property." Wolf v. Buchman, 425 So.2d 182, 184 (Fla. 3d DCA 1983); see also Chandler Leasing Division, Pepsico Service Industries Leasing Corp. v. Florida-Vanderbilt Development Corp., 464 F.2d 267 (5th Cir.), cert. denied, 409 U.S. 1041, 93 S.Ct. 527, 34 L.Ed.2d 491 (1972) (where lease provided that lessee remain liable for all rents upon default, lessor's repossession of the property was no bar to an action for post-possession rent payments). Lease transactions could become hopelessly one-sided if the lessee could walk away from the agreement liable only for payments already in default. There is no per se rule that the lessor's recovery of the leased property precludes recovery of prospective rents under the lease. See 425 So.2d at 185.

We think the trial court correctly found that the lessor had not selected remedy (b), as the defendants claimed. There was competent testimony appellee's rejection of sale of the tractor to the buyer proposed by the appellants was based...