OCEAN DUNES OF HUTCHINSON ISLAND DEVELOPMENT CORPORATION, APPELLANT,
v.
ALBERT COLANGELO AND HELEN COLANGELO, HIS WIFE, AND LORRAINE WOODWARD, APPELLEES

Fla. 4th DCA | 1985-02-06
No. 84-560
HERSEY and DELL, JJ., concur.
463 So. 2d 437 Florida District Court of Appeal, Fourth District (1985) Negative Treatment
Cited by 42 cases

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.

Synopsis

Ocean Dunes, a condominium developer, appealed a trial court judgment granting specific performance of a purchase contract requiring the developer to convey a unit to buyers. The court affirmed, holding that a contractual provision limiting the buyers' remedy to return of their deposit was unreasonable and unenforceable because it created illusory obligations for the developer while imposing real obligations on the buyers.


Holding

The court held that the default provisions were unreasonable and unenforceable because they created illusory obligations for the developer while imposing genuine obligations on the buyers, and thus the trial court correctly granted specific performance as an equitable remedy for the developer's breach.


Headnotes

[1] A trial court has the authority to order specific performance of a contract absent specific contractual restrictions, even if the contract purports to limit remedies.

[2] Contractual provisions limiting remedies must be reasonable to be enforced.

Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Key Quotes

“There is nothing reasonable about the foregoing default provisions. In this contract, the seller's obligations are wholly illusory, while the buyers' are quite real.”

The court's core holding that the asymmetrical remedies provisions are unreasonable and unenforceable.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Ocean Dunes contracted to sell a condominium unit to the Colangellos and Woodward. The purchase agreement contained asymmetrical default provisions: i…

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.


Opinion of the Court
BARKETT, Judge.

BARKETT, Judge.

We affirm the trial court’s final judgment, although one issue raised in this appeal merits discussion.

Appellant is a developer, and two of the appellees, the Golangelos, are buyers of a condominium unit. The developer contends that the trial court erred in granting the buyers specific performance of a contract by ordering the developer to convey a condominium unit to the buyers. The developer argues that the contract between the parties provided only one remedy to the buyers in the event of a breach by the developer, to wit, a return of the buyers’ deposit. The lower court correctly granted specific performance.

There is no issue here of the developer’s ability to perform. The building in question is completed, and requiring the developer to convey the unit to appellees works no hardship. See Con-Dev of Vero Beach, Inc. v. Casano, 272 So. 2d 203 (Fla. 4th DCA 1973).

Absent any specific contractual restriction, a trial court has the authority, under certain circumstances, to order specific performance of a contract as requested by the victim of a breach. See Strong v. Chisolm, 422 So. 2d 974 (Fla. 4th DCA 1982); Home America, Inc. v. Atkinson, 392 So. 2d 268 (Fla. 2d DCA 1980); Black v. Clifton, 284 So. 2d 465 (Fla. 4th DCA 1973); Northwestern National Insurance Company v. Greenspun, 330 So. 2d 561 (Fla. 3d DCA 1976); Black v. Frank, 176 So. 2d 113 (Fla. 1st DCA 1965). The issue, then, is whether the language of the contract in this case, which purports to limit the buyers to the “liquidated damages” of a return of their deposit, acts as a bar to the remedy of specific performance for a breach by the developer. The pertinent provisions of the “Purchase Agreement” between the parties relative to the breach of that agreement are:

10. Default by Developer:

If Developer shall default in the performance of its obligations pursuant to this Agreement, Purchaser’s only remedy shall be to terminate this Agreement, whereupon the Deposit shall be refunded to Purchaser and all rights and obligations hereunder shall thereupon become null and void; provided, however, that if the title to the premises shall not be in accordance with Paragraph 5 hereof because said title is affected by any encumbrance, outstanding interest or question of title which may according to reasonable expectations be removed within sixty (60) days after the scheduled closing date, then notwithstanding any other provisions of this Agreement to the contrary, Developer shall have the privilege but not the obligation, to remove or satisfy the same, and for this purpose Developer shall be entitled to adjourn the closing for a period not exceeding sixty (60) days by giving notice to Purchaser describing the defect and the steps to be taken to remove the same, and designating a new closing date. Developer shall not be required to bring any action or proceeding or otherwise incur any expense to render the title to the premises in accordance with Paragraph 5 hereof. Purchaser may, nevertheless, accept such title as Developer shall be able to convey without reduction of the purchase price or a credit against the same because title is not as required by Paragraph 5 hereof and without liability on the part of the Developer therefor, [emphasis added]

11. Default by Purchaser:

If Purchaser shall fail to complete closing in accordance with the terms of this Agreement or otherwise default in Purchaser’s obligations hereunder, then at the election of Developer:

(a) Developer shall be entitled to retain the Deposit as liquidated and agreed upon damages for the losses and injuries which Developer shall have sustained and suffered as a result of Purchaser’s default, and thereupon the parties hereto will be released and relieved from all obligations under this Agreement. It is agreed that the provisions of this Paragraph 11A for liquidated and agreed upon damages are a bona fide provision for such and are not a penalty, the parties understanding that by reason of the withdrawal of the premises from sale to the general public at a time when other parties would be interested in purchasing the unit, the Developer will have sustained damages if Purchaser defaults, which damages will be substantial but will not be capable of determination with mathematical precision and therefore, as aforesaid, this provision for liquidated and agreed upon damages has been incorporated as part of this Agreement as a provision beneficial to both parties. Purchaser agrees that if he defaults in any of his obligations under this Agreement, he will not file any action against Developer seeking the return of any portion of the deposit or seeking any reduction in the amount of liquidated and agreed upon damages; or (b) Developer may resort to any other legal or equitable remedy to which Developer may be entitled. In the event Developer does obtain judicial enforcement of one or more of its rights under this Agreement, Purchaser hereby agrees to pay all court costs and reasonable attorney’s fees incurred by Developer, [emphasis added]

There is no question that parties to a contract may agree to limit their respective remedies and that those remedies need not be the same. Jay Vee Realty Corp. v. Jaymar Acres, Inc., 436 So. 2d 1053 (Fla. 4th DCA 1983); Wright & Sea-ton v. Prescott, 420 So. 2d 623 (Fla. 4th DCA 1982). Such contractual provisions, however, must be reasonable to be enforced. As the court said in Black v. Frank, 176 So. 2d 113 (Fla. 1st DCA 1965):

Parties may stipulate by contract what the consequences of a breach shall be and such stipulation, if reasonable, is controlling and excludes other consequences. [emphasis added]

The court in Greenstein v. Greenbrook, Ltd., 413 So. 2d 842 (Fla. 3d DCA 1982), reiterated this concept:

It seems clear fom the cases that the courts of this state will uphold any limitation of remedy provision in a contract, which limitation is mutual, unequivocal and reasonable. See, e.g., Black v. Frank, 176 So. 2d 113 (Fla. 1st DCA 1965). [emphasis added]

Id. at 844.

There is nothing reasonable about the foregoing default provisions. In this contract, the seller’s obligations are wholly illusory, while the buyers’ are quite real. The developer can opt to sell the unit to any new buyer willing to pay a higher price than the existing contract price, or even fail to show title to be vested in the developer as required by paragraph 5 of the Agreement, with absolutely no harmful consequences; the developer must only return the buyer’s own money. A return of one’s own money hardly constitutes damages in any meaningful sense. It is especially unconscionable in this case in light of the buyers’ deprivation of the use of their money for several years.

The developer, on the other hand, in the event of a breach by the buyers, is able to choose between retaining the buyers’ deposit or resorting “to any other legal or equitable remedy to which Developer may be entitled.”

This issue was raised in the case of Sper-ling v. Davie, 41 So. 2d 318 (Fla.1949). The case was decided on other grounds but the court expressed in passing the view which we now espouse:

The appellants have posed four questions. The first of these challenges the court’s decree that the original contract be enforced because, it is urged, the liability which should attach in the event of a breach of contract by either party was stated in the instrument itself, where it was provided in effect that if the purchaser failed to comply with its terms by a certain date the down payment of $500 should be retained by the sellers, while if the sellers should fail to comply, this amount should be returned. As we understand the appellants’ argument in support of this position, it simply means that for the remedy of specific performance, which might otherwise be available to the buyer in the event of a breach of contract by the sellers, there would be substituted the remedy of recovering that which he had paid. This seems to us to come perilously close to arguing that the sellers, after entering into a solemn agreement, could glibly dishonor it and restrict the buyer to regaining what was in practical effect already his, inasmuch as the transaction was not consummated and the sellers were therefore not entitled to the money.

Id. at 320 (emphasis in original).

To use the colloquialism of the trial judge, “Sauce for the goose is sauce for the gander.” The parties can stipulate to different kinds of “sauces,” but both parties must have genuine, not illusory, obligations. The relative “remedies” provided in this contract to the buyer vis-a-vis the developer are neither mutual nor reasonable. The contract between the parties constituted an agreement on the part of the developer/owner to convey, and on the part of the purchasers to pay for the subject condominium unit. This was an enforceable and binding contract, supported by valid consideration. See, e.g., Vance v. Roberts, 96 Fla. 379, 118 So. 205 (1928). Because the contract provides no reasonable remedy for its breach, the equitable remedy of specific performance fashioned by the trial court was correct.

AFFIRMED.

HERSEY and DELL, JJ., concur. . Paragraph 5 states:

5. Title Insurance:

Developer shall deliver to Purchaser, at closing, an owner’s Title Insurance Policy from a title insurer licensed to transact business in the State of Florida covering the unit described in this Agreement, showing title to the unit to be vested in Developer.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (25 total)

  • Blue Lakes Apts., Ltd. v. George Gowing, Inc., 464 So. 2d 705 (Fla. 4th DCA 1985)
    …rties to a contract may agree to limit their respective remedies and that those remedies need not be the same. Such contractual provisions, however, must be reasonable to be enforced.” Ocean Dunes of Hutchinson Island Development Corp. v. Colangelo, 463 So. 2d 437 (Fla. 4th DCA 1985) (citations omitted). Blue Lakes’ heads-I-win, tails-you-lose approach to defaults is so rapaciously skewed as to be patently unreasonable. It subverts the contract by permitting one party to breach with impunity. For this reason,…
  • Complete Interiors, Inc. v. Behan, 558 So. 2d 48 (Fla. 5th DCA 1990)
    …de a mutual remedy for [*52] middle class consumers such as the appel-lees. In support of its ruling, the court cited Clone, Inc. v. Orr, 476 So. 2d 1300 (Fla. 5th DCA 1985) and Ocean Dunes of Hutchinson Island Development Corporation v. Colangelo, 463 So. 2d 437 (Fla. 4th DCA 1985). In these cases, developers had defaulted on their obligations to convey specific condominium units to the purchasers. When the purchasers sought specific performance and damages, the developers relied on provisions in' their con…
  • Port Largo Club, Inc. v. Warren, 476 So. 2d 1330 (Fla. 3d DCA 1985)
    …ns may limit their liability by contract, but such provisions must be reasonable to be enforced. Blue Lakes Apartments, Ltd. v. George Gowing, Inc., 464 So. 2d 705 (Fla. 4th DCA 1985); Ocean Dunes of Hutchinson Island Development Corp. v. Colangelo, 463 So. 2d 437 (Fla. 4th DCA 1985); Greenstein v. Greenbrook, Ltd., 413 So. 2d 842 (Fla. 3d DCA 1982). Similar provisions limiting the seller’s liability upon default to return of the buyer’s deposit have been held by the courts to be unenforceable. Blue Lakes Apa…

Previewing 3 of 25 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited (13 total)

View all 13 cited authorities →

Full citator, related cases, and AI research tools

Open in FLexlaw