ANDREW BRUSKO, JR., APPELLANT,
v.
CIRCLE OF SEMINOLE, INC., A FLORIDA CORPORATION, APPELLEE
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Andrew Brusko appeals a trial court judgment awarding him $5,000 in damages after he defaulted on a real estate contract and the seller retained $10,000 in payments. The appellate court reversed, holding that because the contract limited the seller's remedy to forfeiture of the earnest money deposit ($1,000), the seller was not entitled to additional actual damages and must return the remaining $9,000.
The court held that once the trial court determined only the $1,000 earnest money deposit was subject to the liquidated damages clause, Seminole was not entitled to recover additional actual damages beyond that sum. The seller's remedy was limited to forfeiture of the earnest money deposit as specified in the contract.
[1] A liquidated damages clause in a real estate contract, specifying forfeiture of an earnest money deposit upon purchaser default, precludes the seller from seeking additio…
[2] Where a contract designates a specific sum as earnest money to be retained as liquidated damages upon default, the seller cannot retain additional payments made by the pu…
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Join FLexlaw to unlock all legal intelligence“Once the trial court determined that only the $1,000 earnest money deposit was subject to the liquidated damages clause, he should not have awarded damages in excess of that sum.”
Establishes the core holding that damages are limited to the earnest money deposit identified in the contract.
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Join FLexlaw to unlock all legal intelligenceBrusko entered into a written contract to purchase property from Circle of Seminole for $39,500. He paid $1,000 as an earnest money deposit on October…
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CHEATWOOD, J.C., Associate Judge.
Andrew J. Brusko, plaintiff below, appeals a final judgment awarding him $5,000 in damages rather than the $9,000 that he had requested in his complaint. We reverse and remand for entry of judgment in Brus-ko’s favor for the entire $9,000.
Brusko entered into a written contract to purchase real property from appellee, The Circle of Seminole, Inc. (“Seminole”). At the time he signed the contract, on October 18, 1980, Brusko delivered to Seminole the sum of $1,000, which was stated in the contract to be an earnest money deposit made in part payment of the total purchase price of $39,500. The contract also provided, “Additional payment of $9,000.00 due on or before November 15, 1980.”
Brusko timely paid the $9,000 sum but did not close on the contract. Upon Brus-ko’s default, Seminole retained the entire $10,000 paid by Brusko. Brusko sued Seminole, admitting that the real estate contract would allow Seminole to retain the $1,000 earnest money deposit paid when the contract was signed, but claiming that retention by Seminole of the other $9,000 was improper. The contract provided that, if Brusko failed to perform, Seminole could terminate the contract “and the purchaser shall forfeit said earnest money or deposit; [sic] and the same shall be retained by the Seller, as liquidated damages.... ”
In its answer to the complaint, Seminole claimed that the entire $10,000 was earnest money subject to the liquidated damages clause in the contract. In its counterclaim, Seminole also asked for actual damages because it had been required to pay real estate tax on the property and a real estate commission. In his affirmative defenses to Seminole’s counterclaim, Brusko responded that Seminole was entitled to no damages other than the $1,000 earnest money deposit.
After a nonjury trial, the trial court found that the $1,000 was an earnest money deposit subject to the liquidated damages clause and that Seminole had not established that the additional $9,000 was to be applied toward damages in the event of a default. The court further found that Seminole was entitled to $4,000 in actual damages. Thus, the trial court ordered Seminole to return the $9,000, after setting off the $4,000 damage award, leaving a $5,000 judgment in favor of Brusko.
We find that the trial court should have entered judgment for Brusko for the entire $9,000. Once the trial court determined that only the $1,000 earnest money deposit was subject to the liquidated damages clause, he should not have awarded damages in excess of that sum. As in Williams v. Stewart, 424 So. 2d 204 (Fla. 2d DCA 1983), the parties had agreed that forfeiture of the purchaser’s earnest money deposit would be the appropriate remedy in the event of a breach by the purchaser. This court held that the vendors in Williams were not entitled to seek from the purchaser any damages over and above the earnest money deposit contrary to the terms of the contract. 424 So. 2d at 205.
Accordingly, this cause is REVERSED and REMANDED to the trial court for entry of judgment for Brusko in the amount of $9,000.
RYDER, A.C.J., and CAMPBELL, J., concur.
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Seaside Cmty. Dev. Corp. v. William Walter Edwards and wife, 573 So. 2d 142 (Fla. 1st DCA 1991)…enied, 525 So. 2d 879 (Fla.1988). In addition, if the contract provides for liquidated damages of a deposit, normally the court may not award damages in excess of that sum. Design Time v. Moneo, 518 So. 2d at 456; Brusko v. Circle of Seminole, Inc., 436 So. 2d 399 (Fla. 2d DCA 1983). Nevertheless, the remedies provided by the parties are susceptible to scrutiny by the courts, to determine whether they are, in fact, mutual and reasonable. See, e.g., Ocean Dunes of Hutchinson v. Colangelo, 463 So. 2d 437, 440 (…
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Design Time, Inc. v. Monco OF Orlando, Inc., 518 So. 2d 454 (Fla. 5th DCA 1988)…CA 1985). In addition, where the contract provides for liquidated damages of a deposit, the court may not award damages in excess of that sum. Hall Constr. Co., Inc. v. Beynon, 507 So. 2d 1225 (Fla. 5th DCA 1987); Brusko v. Circle of Seminole, Inc., 436 So. 2d 399 (Fla. 2d DCA 1983). Here, there is nothing to indicate that the agreement which was prepared and required by Moneo was not “mutual, unequivocal and reasonable.” Moneo elected to keep the machine and the deposit. Under Monco’s contract, it could at…
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Manfred Brecker and Ann Brecker v. Furman, 508 So. 2d 514 (Fla. 4th DCA 1987)…n favor of the Sellers for damages in the principal amount of One Thousand Dollars ($1,000.00) the trial court specifically relied upon Freitag v. Lakes of Carriage Hills, Inc., 467 So. 2d 708 (Fla. 4th DCA 1985); Brusko v. Circle of Seminole, Inc., 436 So. 2d 399 (Fla. 2d DCA 1983); Makris v. Williams, 426 So. 2d 1186 (Fla. 4th DCA 1983); and Stewart v. Mehrlust, 409 So. 2d 1085 (Fla. 2d DCA 1982). Each of these four cases concerns a default by a Buyer who contracted to purchase real property. However, the d…
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- Williams v. Stewart, 424 So. 2d 204 (Fla. 2d DCA 1983)