Hembree v. Bradley
| Decision Date | 13 July 1988 |
| Docket Number | No. 87-358,87-358 |
| Citation | 528 So.2d 116,13 Fla. L. Weekly 1628 |
| Parties | 13 Fla. L. Weekly 1628 Stephen W. HEMBREE, J.D. Hembree, and Sundance Construction Company of Tallahassee, Appellants, v. Margaret BRADLEY, Appellee. |
| Court | Florida District Court of Appeals |
Cathi C. O'Halloran, of Pennington, Wilkinson and Dunlap, Tallahassee, for appellants.
No appearance for appellee.
Appellants Stephen W. Hembree, J.D. Hembree, and Sundance Construction Company, appeal the trial court's order granting summary judgment on Count One of appellee's complaint seeking specific performance of a contract for sale and purchase of real property. The issues raised in this appeal concern the propriety of summary judgment in light of appellants' affirmative defenses, disputed issues of fact concerning the nature of the transaction and an absence of mutuality of remedy. We reverse.
Prior to entering into the agreement which is the subject of this appeal, appellant Sundance Construction Company (Sundance) was owner of three undeveloped lots located in Tallahassee, Florida. Appellants J.D. Hembree and Stephen (father and son), are the principals of Sundance. The Hembrees and Sundance were engaged in the business of construction and development, and were in need of funds to maintain operations. Sundance had depleted its lines of credit with the conventional lenders with whom it normally did business. J.D. Hembree asked a friend active in the real estate finance business to be alert to other potential sources of funds. During the fall of 1982, Hembree was given the name of a lawyer in Orlando who purportedly knew of an individual, Margaret Bradley (Mrs. Bradley), willing to make the loan appellants required.
Mrs. Bradley visited Tallahassee to look at the property Sundance proposed to offer as collateral. Subsequently, she agreed to make the loan, and a closing date was set. The closing was held in the office of the Orlando attorney. The affidavit submitted by J.D. Hembree reflects that up until the closing, all discussions concerning the transaction were in terms of a loan of capital for the business. At the Orlando closing, J.D. Hembree found the attorney had prepared a warranty deed from Sundance to Mrs. Bradley for the lots Sundance agreed to give as collateral. On October 27, 1982, Mr. Hembree signed the deed, a closing statement which reflects that Mrs. Bradley paid $40,000 for the property, and a contract to buy back the property in one year for $50,000. A penalty clause was written into the contract requiring appellants to pay the additional sum of $1,000 per month from October 29, 1982, through the date of payment, in the event of default.
Appellants were financially unable to repurchase the land as required by the contract. They discussed alternate payment plans with Mrs. Bradley during February or March, 1985, but Mrs. Bradley was unwilling to accept any alternate terms. On January 13, 1986, Mrs. Bradley filed a three-count complaint, seeking: Count I--specific performance of the October 27, 1982, contract for sale and purchase; Count II--damages of $1,000 per month dating from date of the original contract, pursuant to an addendum to the contract; Count III--damages because of storm water run-off damage to the property deeded to Mrs. Bradley. Appellants answered, and raised affirmative defenses of laches, usury, unclean hands, waiver, and estoppel. In addition, appellants counterclaimed for rescission of the contract for sale and purchase, based upon the theory that the debt was unenforceable as a usurious loan.
Thereafter, Mrs. Bradley moved for a summary judgment as to all counts of the complaint. Appellants filed affidavits in opposition to the motion for summary judgment, together with a motion for leave to amend the affirmative defenses formerly filed, to refer specifically to the...
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S.E.C. v. Elliott
...the right to demand to buy back the appellants' interests, this document could be construed as a loan. See, e.g., Hembree v. Bradley, 528 So.2d 116, 118 (Fla.Dist.Ct.App.1988) (loan was disguised as a contract for sale and repurchase of real property). 9 In Hembree, the seller retained the ......
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DEGIRMENCI v. SAPPHIRE-FORT LAUDERDALE, LLLP
...of a contract for sale of land will be decreed only if ... there is no adequate remedy at law available to him." Hembree v. Bradley, 528 So.2d 116, 117-18 (Fla. 1st DCA 1988) (citing Shirley v. Lake Butler Corporation, 123 So.2d 267, 270 (Fla. 2d DCA 1960)). Accordingly, if the buyer does i......
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Oregrund Ltd. Partnership v. Sheive
...by statute. See, e.g., Griffin v. Kelly, 92 So.2d 515 (Fla.1957); American Acceptance. (Florida law). See also Hembree v. Bradley, 528 So.2d 116 (Fla. 1st DCA 1988) (contract may have been a loan disguised as contract for purchase and sale of property). The value of the property as compared......
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Free v. Free, 5D05-2393.
...for specific performance may be granted if it is first established that the contract is valid and enforceable. See Hembree v. Bradley, 528 So.2d 116 (Fla. 1st DCA 1988); Parker v. Weiss, 404 So.2d 820, 821 (Fla. 1st DCA 1981). This is one of those well-settled legal principles previously al......