Sundale Associates, Ltd. v. Southeast Bank, N.A., No. 82-1970

CourtCourt of Appeal of Florida (US)
Writing for the CourtBefore SCHWARTZ; SCHWARTZ
Citation471 So.2d 100,10 Fla. L. Weekly 1340
Parties10 Fla. L. Weekly 1340 SUNDALE ASSOCIATES, LTD., the Sunrise Club, Inc., and Philip J. Scutieri, Jr., Appellants, v. SOUTHEAST BANK, N.A., Appellee.
Decision Date28 May 1985
Docket NumberNo. 82-1970

Page 100

471 So.2d 100
10 Fla. L. Weekly 1340
SUNDALE ASSOCIATES, LTD., the Sunrise Club, Inc., and Philip J. Scutieri, Jr., Appellants,
v.
SOUTHEAST BANK, N.A., Appellee.
No. 82-1970.
District Court of Appeal of Florida,
Third District.
May 28, 1985.
Rehearing Denied July 10, 1985.

Page 101

Horton, Perse & Ginsberg, and Edward Perse; Hall and O'Brien, Miami, for appellants.

Steel, Hector & Davis and Alvin Davis and Vance E. Salter, Miami, for appellee.

Before SCHWARTZ, C.J., and BARKDULL and JORGENSON, JJ.

SCHWARTZ, Chief Judge.

Before us are an appeal and cross-appeal challenging various aspects of a final judgment foreclosing a series of construction notes and mortgages securing a Dade County project in the principal amount of over $5,500,000.

Despite the complexity of the several instruments and of the relationship between the parties as it developed during the construction process, the complaint filed by the lender, Southeast Bank, did not allege with specificity the bases for the

Page 102

foreclosure proceedings; rather it claimed only that the notes and mortgages were "in default pursuant to the terms thereof," and referred, again only generally, to the construction loan agreements. Those contracts, in turn, identify possible acts of default by the borrower, Sundale, as non-payment of the required principal and interest and the failure to make agreed to equity contributions to the project.

The judgment under review followed a jury trial on the issues, as raised by Sundale's answer and counterclaim, of (a) whether and to what extent Southeast had waived the payment of interest by Sundale 1 and (b) whether Southeast had breached implied and express conditions of the construction loan agreement by, among other things, improperly and negligently mismanaging and failing to provide for the disbursement of funds in the course of the work. On these questions: (a) the jury found that Southeast waived interest through the date of the verdict; on post-trial motion, however, the trial court reduced the extent of the waiver to the date that suit was filed; (b) the jury found for Sundale on the "breach of contract" question and assessed "damages" of $3,000,000. 2 Subsequently, the lower court--based upon a non-jury trial which had been conducted before the jury trial--ruled that "the equities are with [Southeast]," although, like the complaint, it did not indicate the nature of the default it had found. Accordingly, it entered the judgment of foreclosure now before us for (1) the principal amounts allegedly expended by the lender, (2) interest, commencing when the suit was filed, in accordance with the prior ruling concerning the jury verdict, and (3) attorney's fees; the $3,000,000 jury award was deducted from the total sum computed for principal and interest. 3

We hold:

1. On two grounds, the trial court erred in reducing the waiver period from that found by the jury. First, Southeast's counsel specifically agreed on the record that the extent of the waiver--including whether it extended to the time of verdict--was for the jury to determine. Any only-now-alleged error in this regard was therefore not only not preserved but was affirmatively invited and may therefore not be successfully presented in this court. Arsenault v. Thomas, 104 So.2d 120 (Fla. 3d DCA 1958); Adams v. State, 465 So.2d 564 (Fla. 3d DCA 1985); 3 Fla.Jur.2d Appellate Review § 294 (1978). Second, and in any case, the record amply supports the jury determination in this regard. Gilman v. Butzloff, 155 Fla. 888, 22 So.2d 263 (1945); Rader v. Prather, 100 Fla. 591, 130 So. 15 (1930); Davis v. Davis, 123 So.2d 377 (Fla. 1st DCA 1960). Consequently, the finding that Southeast waived interest to the date of the verdict is reinstated and will apply to all future proceedings in this cause.

2. (a) For a similar set of reasons, we reject Southeast's claim to a directed verdict in its favor on the improper disbursements-breach of contract counterclaim. The issue is, again, not even properly before us, because Southeast, ignoring the trial judge's broad hint that it do so, did not move for a directed verdict at the conclusion of all of the evidence, as is required to preserve the point. 6551 Collins Avenue Corp. v. Millen, 104 So.2d 337 (Fla.1958); Hall v. Ricardo, 331 So.2d 375 (Fla. 3d DCA 1976)....

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12 practice notes
  • Guerrero v. State, No. 86-2654
    • United States
    • Court of Appeal of Florida (US)
    • 18 Octubre 1988
    ...Rev.1978). Recognizing that Guerrero's exculpatory statement retains its hearsay character, see Sundale Assocs., Ltd. v. Southeast Bank, 471 So.2d 100, 103, n. 5 (Fla. 3d DCA 1985), we hold that the potential for unfairness mandates the admission of Guerrero's statement. The doctrine of cur......
  • Duffell v. South Walton Emergency Services, Inc., No. BH-122
    • United States
    • Court of Appeal of Florida (US)
    • 26 Enero 1987
    ...offer any "continuity" exception to the hearsay rule provided by the Florida Evidence Code. Sundale Associates, Ltd. v. Southeast Bank, 471 So.2d 100, 103, n. 5 (Fla. 3d DCA 1985). The court stated that a letter written by one of the parties, ostensibly in continuity with one of a series of......
  • ARDC Corp. v. Zell, Nos. 89-1702
    • United States
    • Court of Appeal of Florida (US)
    • 29 Enero 1991
    ...Fla. 270, 9 So.2d 369 (1942); Kingswharf, Ltd. v. Kranz, 545 So.2d 276 (Fla. 3d DCA 1989); Sundale Associates, Ltd. v. Southeast Bank, 471 So.2d 100 (Fla. 3d DCA 1985); Dale v. Ford Motor Company, 409 So.2d 232 (Fla. 1st DCA 1982); Auletta v. Fried, 388 So.2d 1067 (Fla. 4th DCA The final ju......
  • Hobbs v. Florida First Nat. Bank of Jacksonville, No. BI-159
    • United States
    • Florida District Court of Appeals
    • 16 Diciembre 1985
    ...against petitioners are legal ones and petitioners are entitled to a jury trial on these. See Sundale Associates, Ltd. v. Southeast Bank, 471 So.2d 100 (Fla. 3d DCA, 1985) (failure to disburse funds in accordance with a construction loan is a legal Although in Bradberry v. Atlantic Bank of ......
  • Request a trial to view additional results
12 cases
  • Guerrero v. State, No. 86-2654
    • United States
    • Court of Appeal of Florida (US)
    • 18 Octubre 1988
    ...Rev.1978). Recognizing that Guerrero's exculpatory statement retains its hearsay character, see Sundale Assocs., Ltd. v. Southeast Bank, 471 So.2d 100, 103, n. 5 (Fla. 3d DCA 1985), we hold that the potential for unfairness mandates the admission of Guerrero's statement. The doctrine of cur......
  • Duffell v. South Walton Emergency Services, Inc., No. BH-122
    • United States
    • Court of Appeal of Florida (US)
    • 26 Enero 1987
    ...offer any "continuity" exception to the hearsay rule provided by the Florida Evidence Code. Sundale Associates, Ltd. v. Southeast Bank, 471 So.2d 100, 103, n. 5 (Fla. 3d DCA 1985). The court stated that a letter written by one of the parties, ostensibly in continuity with one of a series of......
  • ARDC Corp. v. Zell, Nos. 89-1702
    • United States
    • Court of Appeal of Florida (US)
    • 29 Enero 1991
    ...Fla. 270, 9 So.2d 369 (1942); Kingswharf, Ltd. v. Kranz, 545 So.2d 276 (Fla. 3d DCA 1989); Sundale Associates, Ltd. v. Southeast Bank, 471 So.2d 100 (Fla. 3d DCA 1985); Dale v. Ford Motor Company, 409 So.2d 232 (Fla. 1st DCA 1982); Auletta v. Fried, 388 So.2d 1067 (Fla. 4th DCA The final ju......
  • Hobbs v. Florida First Nat. Bank of Jacksonville, No. BI-159
    • United States
    • Florida District Court of Appeals
    • 16 Diciembre 1985
    ...against petitioners are legal ones and petitioners are entitled to a jury trial on these. See Sundale Associates, Ltd. v. Southeast Bank, 471 So.2d 100 (Fla. 3d DCA, 1985) (failure to disburse funds in accordance with a construction loan is a legal Although in Bradberry v. Atlantic Bank of ......
  • Request a trial to view additional results

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