Walker v. Benton

• Decision Date: 14 December 1981
• Docket Number: No. 80-1698,80-1698
• Citation: Walker v. Benton, 407 So.2d 305 (Fla. App. 1981)
• Parties: Eddie L. WALKER and Zell G. Walker, Appellants, v. Jo Ann BENTON and Bessie M. Roberts, Appellees.
• Court: Florida District Court of Appeals

Page 305

407 So.2d 305

Eddie L. WALKER and Zell G. Walker, Appellants, v. Jo Ann BENTON and Bessie M. Roberts, Appellees.

No. 80-1698.

District Court of Appeal of Florida, Fourth District.

Dec. 14, 1981.

Todd L. Smith, Fort Lauderdale, for appellants.

Alan H. Konigsburg, Fort Lauderdale, for appellees.

BARKETT, ROSEMARY, Associate Judge.

Eddie and Zell Walker appeal from a final judgment which awarded damages and specific performance of a contract for the conveyance of real property. We reverse as to damages, while finding that specific performance is warranted. We remand for certain factual determinations in connection therewith.

On February 15, 1979, Jo Ann Benton and her mother, Bessie Roberts, entered into a deposit receipt contract with Eddie and Zell Walker for the purchase of certain real property. Although the contract, which was an FHA form, provided that all monies would be refunded and the parties would be relieved of their liability thereunder if the purchaser failed to qualify for an FHA mortgage, the sellers did not object to the purchasers' reapplication for financing after they had been rejected twice on the basis of insufficient income. On June 1, 1979, the FHA issued a firm commitment to the purchasers and the only obstacle to closing was certain repairs and reports which the sellers had indicated they would complete. By letter dated June 12, 1979, however, the sellers summarily and unilaterally terminated the contract and refused to convey.

While the contract herein would have terminated automatically upon the purchasers' failure to originally obtain FHA financing, we believe that the acquiescence of the sellers in the reapplication for financing constituted a waiver of their right not to proceed under the contract. Thus, we agree with the trial court's order requiring specific performance.

We also agree that the purchasers are entitled to some damages incident to the award of specific performance, but not those sought by the purchasers and ordered by the trial court. The purchasers, in addition to specific performance, sought damages for attorney's fees, furniture storage costs and rent for alternative housing pending the closing, and damages resulting from the loss of their FHA mortgage commitment because the purchasers would become obligated to a mortgage of greater cost and higher interest upon the eventual closing of this transaction. The trial court granted damages for furniture storage and alternative rent; deferred the question of attorney's fees; and, with reference to the loss of the favorable mortgage rate, provided only that the conveyance be upon the terms of the FHA commitment issued in June, 1979.

The law in Florida clearly allows damages incident to granting specific performance, but such damages are limited to those which will return the parties to the status quo at the time of the breach:

" 'the general rule is well settled that where the contract is not completed until after the time stipulated for that purpose, but the court nevertheless decrees a specific performance, it will adjust the equities of the parties by placing them as far as possible in the same position which they would have occupied had the agreement been completed at the prescribed day, and to that end it will allow to the purchaser the rents and profits, and to the vendor interest upon the purchase price from and after that date.' "

Salinas v. Rieck & Fleece Builders Supplies, Inc., 109 So.2d 394 (Fla. 2d DCA 1959).

330 Michigan Ave. Inc. v. Cambridge Hotels, Inc. (1966 Fla.) 183 So.2d 725.

The "rent and profit" allowable in this case is not the rent for alternative housing during the interim between the appellants' default and...