Wolf v. Buchman

• Decision Date: 18 January 1983
• Docket Number: No. 81-803,81-803
• Citation: 425 So.2d 182
• Parties: Donald J. WOLF, d/b/a Printing Plus, Appellant, v. Robert BUCHMAN, d/b/a Minit Print of Miami, Appellee.
• Court: Florida District Court of Appeals

Page 182

425 So.2d 182

Donald J. WOLF, d/b/a Printing Plus, Appellant, v. Robert BUCHMAN, d/b/a Minit Print of Miami, Appellee.

No. 81-803.

District Court of Appeal of Florida,

Third District.

Jan. 18, 1983.

Britton, Cohen, Kaufman, Benson and Schantz and J. Robert Olian, Miami, for appellant.

Richard A. Burt, Miami, for appellee.

Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.

DANIEL S. PEARSON, Judge.

This is an appeal from a final judgment in favor of Buchman, the plaintiff below. The judgment awarded to Buchman the possession of a Minolta copier pursuant to a writ of replevin, damages in the sum of $3,650, and attorneys' fees.

In January 1980, Buchman and Wolf orally agreed that Buchman, beginning then, would lease a Minolta copier to Wolf for thirty-six months at a rental of $100 per month. From January to May, the copier was disabled on many occasions. Because Buchman advised Wolf that Minolta refused to service the copier because of a dispute about the amount owed by Buchman for the machine, Wolf had the copier repaired by another service company. Service was needed three or four times a month.

By June 1980, the copier was not working at all. Wolf demanded that Buchman refund the rental paid to date, a sum of $400. Buchman refused, but offered to terminate the lease upon Wolf's return of the copier. Wolf advised Buchman that he would not return the machine until he was reimbursed for the amounts expended on repairs.

In September 1980, Buchman filed a complaint for replevin, a writ issued, and Buchman took possession of the copier. In a second amended complaint, Buchman sought lost revenues under the lease of $3,200, the cost of repairing the copier which, he maintained, Wolf had damaged, and attorneys' fees. ¹

Wolf concedes that although the evidence as to which of the parties was responsible for the continued malfunctioning and poor condition of the copier was in dispute, there is evidence to support the trial court's finding that Wolf was at fault. Since there is also sufficient evidence to show that the cost to repair the copier at the time it was returned to Buchman was $1,000, it follows that Buchman is at least entitled to that amount. Wolf further concedes that he was in possession of the machine for ten months before it was replevined and that, therefore, Buchman was entitled to $600 in accrued and unpaid rent. Wolf's primary complaint on appeal is that the balance of the undifferentiated judgment of $3,650 is totally without support in the record. We must agree unless Buchman, as he contends, established his entitlement to payments under the lease agreement accruing after the machine was returned to him under the writ of replevin. ² Wolf's second point is that an award of attorneys' fees under Section 57.105, Florida Statutes (1979), was totally unjustified.

A lease, whether of real or personal property, may create or defeat the right to the value of the lease as damages even upon return of the property. ³ See Chandler Leasing Division, Pepsico Service Industries Leasing Corp. v. Florida-Vanderbilt Development Corp., 464 F.2d 267 (5th Cir.), cert. denied sub nom., Florida-Vanderbilt Development Corp. v. Chandler Leasing Division, Pepsico Service Industries Leasing Corp., 409 U.S. 1041, 93 S.Ct. 527, 34 L.Ed.2d 491 (1972). In Chandler Leasing, the parties entered into a nine-year lease of a yacht. Nine months later, the lessee ceased making payments and notified the lessor that it was terminating the lease because of an electrolysis problem. The lessor sought and obtained a judgment of replevin. Thereafter, the lessor brought suit to recover damages in accordance with the provisions of the lease, namely, all future rental payments less the price received by it at the public sale of the yacht. The lessee defended on the theory, inter alia, that the lessor's damages were limited to accrued rental payments in default. The trial court agreed with the lessee and entered summary judgment in its favor. The Fifth Circuit reversed, holding that since the lease specifically provided that the lessee remain liable for all rents upon default, the lessor's repossession of the property was no bar to an action for post-possession rents.

Construing Florida law, the Fifth Circuit rejected the lessee's argument that our decisions in Cutler Gate Building Corp. v. United States Leasing Corp., 165 So.2d 207 (Fla. 3d DCA 1964), and Monsalvatge & Co. of Miami, Inc. v. Ryder Leasing, Inc., 151 So.2d 453 (Fla. 3d DCA 1963), establish a per se rule that once the property under a lease is returned to the lessor, only the rentals in default at that time may be recovered as damages. Said the court:

"[Cutler Gate and Monsalvatge ] cannot be interpreted to lay down the per se rule that irrespective of whatever contractual damage provision the parties have agreed upon, only rentals in default [can be] recovered. Such a rule would not only conflict with the right of contracting parties to obligate themselves as they wish but it would also be inconsonant with sound reason. Under so absolute a rule, lessees could breach lease agreements with impunity knowing that they would be liable only for the payments in default, and lessors on the other hand would never know when the property would be returned and in what condition. Such intolerable conditions would so seriously impair the commercial viability and efficacy of lease transactions that they would forestall or inhibit the negotiation of commercially valuable lease agreements." 464 F.2d at 270.

We agree with Chandler Leasing that no such per se rule exists and conclude, therefore, that Buchman's recovery of the copier did not ipso facto preclude him from recovering prospective rental payments under the lease. But the absence of a per se rule does not mean, conversely, that Buchman was entitled to recover these prospective rental payments.

The parties concede that the oral lease agreement here went no further than providing for the amount of monthly rent and the term of the lease. No agreement was reached, or discussion had, as to the liability of the lessee for the remainder of the rent in the event the property was returned to the lessor before the expiration of the term of the lease, or the rights or obligations of the lessor in that event. We cannot then, as did the court in Chandler Leasing, determine from the bare-bones lease agreement whether the lessor was entitled to recover prospective rental payments after recovering the property.

Where, as here, the remedy available to a lessor when his lessee breaches a lease agreement cannot be found in the lease itself, we must look to the case law for the available remedies. Chandler Leasing Division, Pepsico Service Industries Leasing Corp. v. Florida-Vanderbilt Development Corp., supra. In Stenor,...