McLaughlin v. Block, 63-72

• Decision Date: 10 January 1964
• Docket Number: No. 63-72,63-72
• Citation: McLaughlin v. Block, 159 So.2d 920 (Fla. App. 1964)
• Parties: Alma McLAUGHLIN, Appellant, v. Lillian B. BLOCK, Appellee.
• Court: Florida District Court of Appeals

Page 920

159 So.2d 920

Alma McLAUGHLIN, Appellant, v.Lillian B. BLOCK, Appellee.

No. 63-72.

District Court of Appeal of Florida, Third District.

Jan. 10, 1964.

Rehearing Denied Feb. 11, 1964.

Richard F. Ralph, Ernest J. London, Miami, for appellant.

Alex Gordon, Lemelman & Lehrman, Miami, for appellee.

Before BARKDULL, C. J., and CARROLL and TILLMAN PEARSON, JJ.

BARKDULL, Chief Judge.

The appellant seeks review of an amended final decree, decreeing specific performance of a contract for the sale of real estate.This cause of action arose by the appellant instituting a suit to rescind a contract for the sale of real estate at a total price of $115,000.00, because of the failure of the sellers to deliver '* * * quit claim deeds or any other suitable instruments wherein all persons who might have any right to the use of the dock now existing on the waterfront premises of the aforedescribed property, of the use of said waterfront property or the enjoyment of the riparian property (whether such use or enjoyment be by deed, license or prescription) effectively abandon and disclaim any such privileges or rights.'Issue was joined and the chancellor rendered an extensive decree, finding in fact that the sellers had failed to deliver the instrument required in the exact form required by the deposit receipt; that such deficiency in performance was not of such substantial nature as to give the purchaser the right to rescind, and applied the doctrine of 'de minimis non curat lex'.He decreed specific performance of the contract with certain alternatives, including a $1,500.00 abatement in the purchase price because of the deficiency in reference to the dock.

Upon this appeal, the appellant has urged several points for reversal, the principal point being that the doctrine of 'de minimis non curat lex' should not have been applied in the instant action.The appellee cross-assigns error in the failure to award attorney's fees, as provided for in the deposit receipt agreement.

As to the application of the doctrine of 'de minimis non curat lex', it appears that the determination of such is within the discretion of the chancellor.See: Loeffler v. Roe, Fla.1953, 69 So.2d 331, 47 A.L.R.2d 319.In order to upset the exercise of this discretion, it is incumbent upon the appellant to demonstrate error.See: Durham v. Durham, 137 Fla. 506, 188 So. 609;Bliss v. Hallock, Fla.App.1959, 113 So.2d 889.It appears that if the doctrine is applicable [a point which will...