GEORGE F. COX AND PHYLLIS COX, APPELLANTS/CROSS-APPELLANTS,
v.
HAMMOND AND COMPANY, INC., A FLORIDA CORPORATION, APPELLEE/CROSS-APPELLEE

Fla. 4th DCA | 1990-09-19
Nos. 89-0236, 89-1390
HERSEY, C.J., and WALDEN, J., concur.
566 So. 2d 936 Florida District Court of Appeal, Fourth District (1990) Positive Treatment
Cited by 4 cases

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Holding

The court held that the sellers were not personally liable for the buyer's breach absent evidence of the buyer's ability to close, but the broker could recover its interest in the deposit money.

Facts & Procedural History

Sellers appealed a judgment entered after a buyer breached a deposit receipt contract. The judgment was entered against the sellers personally and for…

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Topics
Attorney'S Fees Breach Of Contract

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Opinion of the Court
STONE, Judge.

STONE, Judge.

The sellers under a deposit receipt contract appeal from a judgment entered in favor of their broker following a buyer’s breach. The judgment was entered, in paragraph one, against the sellers individually, and, in paragraph two, for the broker’s interest in the deposit against the holder of the deposit money.

We reverse that portion of the judgment entered personally against the sellers in the absence of any evidence of the buyer’s ability, at the time the contract was signed, to close. See Sharp v. Long, 283 So. 2d 567 (Fla. 4th DCA 1973). However, the broker is not prevented from recovering its interest in the deposit money in accordance with the terms of the contract simply because the sellers have elected not to pursue a claim to their portion of the deposit.1

Therefore, we reverse the judgment in part and remand for modification in accordance with the provisions of paragraph two of the judgment.

Additionally, we reverse the award of fees to the broker under section 448.08, Florida Statutes. Miller v. Perez, 524 So. 2d 1084 (Fla. 4th DCA 1988). We also reject the broker’s claim to fees under section 57.105, Florida Statutes. Schumacher v. Wellman, 415 So. 2d 120 (Fla. 4th DCA 1982).

HERSEY, C.J., and WALDEN, J., concur. . We note that the buyer was a party in the litigation but was dismissed out of this appeal.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Skyline, Inc. v. Titus, 745 So. 2d 377 (Fla. 4th DCA 1999)
    …their entitlement to fees under section 768.79, Florida Statutes (1997), or a finding that Titus was not an independent contractor, such that he would be entitled to fees under section 448.08, Florida Statutes (1997). See Cox v. Hammond & Co., Inc., 566 So. 2d 936, 937 (Fla. [*378] 4th DCA 1990); Miller v. Perez, 524 So. 2d 1084, 1086 (Fla. 4th DCA 1988). AFFIRMED. STONE, POLEN and GROSS, JJ., concur.…
  • COX v. Trusler, 586 So. 2d 502 (Fla. 4th DCA 1991)
    …PER CURIAM. Affirmed on authority of Cox v. Hammond and Co., Inc., 566 So. 2d 936 (Fla. 4th DCA 1990), and In Re Guardianship of [*503] Coolidge, 368 So. 2d 426 (Fla. 4th DCA 1979). DOWNEY, DELL and POLEN, JJ., concur.…

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