Hernandez v. Leiva
| Decision Date | 09 December 1980 |
| Docket Number | Nos. 80-367,80-589,s. 80-367 |
| Citation | 391 So.2d 292 |
| Parties | Josefa HERNANDEZ, Appellant, v. Zoila LEIVA, Appellee. |
| Court | Florida District Court of Appeals |
Morales, Rudolph & Hevia and Nestor Morales, Miami, for appellant.
Stanley M. Ersoff, Miami, for appellee.
Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
These consolidated appeals stem from a final order assessing damages against a seller and awarding attorney's fees to the plaintiff-buyer, pursuant to Section 57.105, Florida Statutes (1979); as well as an antecedent and subservient interlocutory order decreeing specific performance of a written contract to sell a house. We affirm in all respects except that portion awarding attorney's fees without allocation as discussed herein.
The first point raised by the appellant-seller is that the trial court abused its discretion in bifurcating the issues of liability and damages. The contract for the sale of the home provided that the buyer was to assume an existing mortgage. The mortgage contained a clause providing that the buyer was required to qualify with the mortgage lender. Consequently, the parties expressly stipulated as indicated in the contract as follows:
Seller acknowledges that the existing mortgage cannot be assumed without prior qualification of the assumption and the investor may adjust the interest rate to the new assumption. And purchaser agrees with this paragraph.
Between the date of execution of the contract and the interlocutory order decreeing specific performance, approximately sixteen months had elapsed and interest rates had increased. The increased interest rate to be charged by the mortgagee could not be fixed and determined until the closing date. Until the court decreed specific performance and a closing date had been established the increased interest rate could not be determined for the purpose of assessing damages. Damages, if any, were speculative until that time. Consequently, it resided within the discretion of the trial court, on its own initiative, to bifurcate and continue the trial as to damages and attorney's fees. Fla.R.Civ.P. 1.270(b); Watts v. Mantooth, 196 So.2d 230 (Fla. 2d DCA 1967).
The second point raised by the seller is addressed to the trial court's award of damages to the buyer. At the time the contract was executed, the interest rate on a mortgage loan was ten per cent. In between that date and the date of closing, under the decree of specific performance, interest rates had increased to twelve and one-half per cent. Under the above-quoted provision of the contract, the parties contemplated a change in mortgage loan interest rates. This provision had been inserted during a period of spiraling inflation for the protection of the seller against a default by the buyer. The trial court heard evidence that the seller refused to close under the agreed priced because of the rapidly appreciating value of her home and consequently found that the seller arbitrarily refused to close. As an equity court, it was empowered to assess damages against the seller so as to place the parties, as far as possible, in the same position they would have occupied had the agreement been performed within the prescribed time. Salinas v. Rieck & Fleece Builders Supplies, Inc., 109 So.2d 394 (Fla. 2d DCA 1959).
The final issue raised by the seller is that the trial court improperly awarded attorney's fees in favor of the buyer pursuant to Section 57.105, Florida Statutes (1979). In the interlocutory order decreeing specific performance, the trial court expressly found that the acquiring purchaser, as the prevailing party, was entitled under the statute to attorney's fees because there was a complete absence of justiciable issue either in law or in fact as required by the statute. MacBain v. Bowling, 374 So.2d 75 (Fla. 3d DCA 1979).
At trial, after the buyer made out a prima facie case, the seller called no witnesses in her own behalf. Instead, she nominally attempted to create an issue by cross-examination of the plaintiff's witness. The seller was called by the buyer as an adverse witness who testified that she did not close because she would not be released from the mortgage by the mortgagee. The...
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To b ... Or not to b ... "b ..." means bifurcation.
...the amount of damages, if any, to be awarded." The Mantooth case was quoted by the Third DCA in 1980 in the case of Hernandez v. Leiva, 391 So. 2d 292, in which the court said that it was within the discretion of the trial court, on its own initiative, to bifurcate and continue the trial as......