ATLAS POOLS OF THE PALM BEACHES, INC., A FLORIDA CORPORATION, APPELLANT,
v.
P.V. CONSTRUCTION CORP., A FLORIDA CORPORATION, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that a motion to dismiss was an improper vehicle to determine the nature and validity of a contractual late charge provision.
A homeowner agreed to a 1% daily late charge for failure to make final payment on a pool construction contract. The balance owed was $1,880, and the l…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Forbearance cases and more on FLexlaw
LETTS, Judge.
We do not believe a protracted recitation of the facts of this ease will contribute to the body of the law. Suffice it to say, a homeowner, in an amendment to a contract for the construction of a pool, agreed to a “late charge” of 1% for each day he failed to make the final payment thereon. The balance owed on the pool was $1,880 and by the time the motion to dismiss was heard the late charge totalled $4,414.
The motion to dismiss the pool builder’s complaint was filed by the homeowner upon the basis that the late charge was tantamount to interest at a usurious rate. The trial court agreed and granted the motion. We reverse.
This controversy should not have been disposed of on a motion to dismiss. From the four corners of the complaint, it cannot be determined whether the “late charge” was a provision to induce timely payment of an obligation, see Homewood Investment Co. v. Moses, 608 P. 2d 503 (Nev.1980), a forbearance to enforce the collection of a debt, or a provision for liquidated damages. Moreover, assuming it was a liquidated damages provision, there would remain the question of whether it was reasonably proportionate to the damages sustained.
This cause is reversed and remanded for further proceedings.
REVERSED AND REMANDED.
HERSEY and WALDEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
P.V. Constr. Corp. v. Kovner, 538 So. 2d 502 (Fla. 4th DCA 1989)…trial court’s dismissal of the suit on the basis of the homeowner’s contention the provision for a one percent late charge for each day payment was delayed was tantamount to usury. In Atlas Pools of the Palm Beaches, Inc. v. P.V. Construction Corp., 455 So. 2d 1120 (Fla. 4th DCA 1984), this court reversed, stating that from the four corners of the complaint it was not possible to tell whether the late charge provision was an inducement to make timely payment, a forbearance to enforce collection of a debt, or a…