RONALD R. FIELDSTONE AND LINDA FIELDSTONE, APPELLANTS,
v.
CHOI CHUNG AND SUNNY CHUNG, APPELLEES
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This case involves a dispute over a real estate contract where the buyers were unable to secure a mortgage commitment. The appellate court reversed the trial court's summary judgment, finding that the buyers' diligence in seeking the loan was a question of fact for a jury, not a matter of law.
The appellate court held that the question of whether the purchasers exercised "every diligent effort" to obtain the mortgage commitment is a question of fact, not a matter of law, and therefore summary judgment was inappropriate.
[1] Whether a party exercised "every diligent effort" to obtain a mortgage commitment is generally a question of fact for the trier of fact.
[2] A contract provision requiring a party to make "every diligent effort" to obtain a mortgage commitment cannot be resolved as a matter of law on summary judgment if there…
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Join FLexlaw to unlock all legal intelligence“We are not able to say on this record that the trial court could, as a matter of law, hold that the Chungs used “every diligent effort” to secure the minimum loan commitment required by the terms of the agreement and remove this question from a trier of fact.”
Establishes the core legal issue and the appellate court's disagreement with the trial court's legal conclusion.
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Join FLexlaw to unlock all legal intelligenceThe Fieldstones and Chungs entered into a contract for the sale of a residence, with the Chungs required to obtain a mortgage commitment of at least $…
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BARKDULL, Judge.
The Fieldstones, as sellers, and the Chungs, as purchasers, entered into a contract for the purchase and sale of a residence for a total price of $165,000.00, among other things, the contract and its addendum provided as follows:
1. Purchasers shall immediately apply for, and make every diligent effort to qualify for and obtain at Purchaser’s expense, a Mortgage Commitment from any lending institution in an amount of at least $132,000. at the current prevailing rate of Interest. Purchasers shall be granted a period of 30 days to obtain this Mortgage Commitment. In the event this Mortgage Commitment cannot be obtained by Purchasers after expending every diligent effort within 45 days, then all monies on deposit shall be returned to Purchasers, and all Parties released of all obligations; and, this agreement terminated.
2. In the event that Purchasers do not qualify for the full amount of $132,000. then Sellers agree to take back a second mortgage securing an amount of up to $15,000. which amount shall bear interest of the rate of 12% (twelve percent) per annum, payable based upon a 10 year amortization with a two year balloon payment. Accordingly, if Purchasers qualify for a first mortgage of at least $117,000. then Purchasers shall be obligated and be bound by this contract.
The Chungs made several loan applications to various lending institutions but were unable to secure a loan commitment any larger than $110,400.00, because of the appraisal on the house or their income would not service a loan for a greater amount than $110,400.00. The plaintiffs instituted suit, claiming the right to retain one-half the $11,000.00 deposit posted under the contract and/or damages for breach of contract. After depositions disclosed that, among other things, the Chungs may have had a greater income than reported on some of their loan applications, the trial court entered a final summary judgment for the Chungs, returning to them the $11,000.00 deposit and awarded them $5,444.00 as attorney’s fees pursuant to Section 57.105, Florida Statutes (1978).
This appeal ensued. The Field-stones urge error in both awards. We agree. We are not able to say on this record that the trial court could, as a matter of law, hold that the Chungs used “every diligent effort” to secure the minimum loan commitment required by the terms of the agreement and remove this question from a trier of fact. Normally, the question of the use of due diligence is a question of fact. Allington Towers North, Inc. v. Teich, 345 So. 2d 745 (Fla. 4th DCA 1977); Beekay Realty Corp. v. Cayre, 256 So. 2d 539 (Fla. 3d DCA 1972). As to the attorney’s fees, the final summary judgment being reversed, this award will likewise be set aside. Whitten v. Progressive Casualty Insurance Co., 410 So. 2d 501 (Fla.1982).
Therefore, the final summary judgment and the order awarding attorney’s fees are both reversed and the matter returned to the trial court for further proceedings not inconsistent with this opinion.
Reversed and remanded, with directions.
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Jewett v. Cliff Leisinger and Jo Ellen Leisinger, 655 So. 2d 1210 (Fla. 4th DCA 1995)…f the Leisingers. Because the trial court’s summary judgment order is reversed, the order awarding the Leisingers’ attorney’s fees pursuant to section 57.105, Florida Statutes (1993), must necessarily be reversed as well. E.g., Fieldstone v. Chung, 416 So. 2d 11 (Fla. 3d DCA 1982). Therefore, the final summary judgment and the order awarding attorney’s fees are both reversed and the matter returned to the trial court for further proceedings consistent with this opinion. REVERSED AND REMANDED. FARMER and K…
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Quirch v. Coro, 842 So. 2d 184 (Fla. 3d DCA 2003)…e requisite financing is ordinarily a question of fact for the trier of fact. See Biersbach v. Landin, Ltd., 454 So. 2d 779, 780 (Fla. 4th DCA 1984); Ahl v. RSM Developers & Assocs. Ltd., 418 So. 2d 471, 472 (Fla. 4th DCA 1982); Fieldstone v. Chung, 416 So. 2d 11, 12 (Fla. 3d DCA 1982). But cf. Merritt v. Davis, 265 So. 2d 69, 70 (Fla. 3d DCA 1972) (upholding summary judgment returning deposit to purchaser based upon undisputed record evidence supporting purchaser’s inability to fulfill condition precedent t…
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Biersbach v. Landin, Ltd., 454 So. 2d 779 (Fla. 4th DCA 1984)…y judgment. We disagree. Appellants can only recover their deposit if they “made a diligent effort to obtain said loan from three lending institutions.” “Normally, the question of the use of due diligence is a question of fact.” Fieldstone v. Chung, 416 So. 2d 11, 12 (Fla. 3d DCA 1982); see also Allington Towers North, Inc. v. Teich, 345 So. 2d 745 (Fla. 4th DCA 1977). Therefore, the final summary judgment is reversed and remanded for further proceedings consistent herewith. REVERSED and REMANDED. DOWNEY…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501 (Fla. 1982)
- Beekay Realty Corp. v. Cayre, 256 So. 2d 539 (Fla. 3d DCA 1972)
- Allington Towers N., Inc. v. Teich, 345 So. 2d 745 (Fla. 4th DCA 1977)