DAVID GERGORA AND GEORGE GERGORA AND E.M.R. CORP., APPELLANTS/CROSS-APPELLEES,
v.
WILLIAM FLYNN AND ELIZABETH FLYNN, HIS WIFE, APPELLEES/CROSS-APPELLANTS
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E.M.R. Corporation and the Gergoras appealed a judgment rescinding their long-term lease due to material breaches. The Florida Third District Court of Appeal affirmed the rescission, rejecting arguments that the landlords waived their rights by accepting rent and that the trial court's findings were clearly erroneous.
The court affirmed that material breaches justified rescission; the lessors did not waive rescission rights by accepting rent because the lease required a written waiver of default; and the lessors waived attorney's fees when they waived their damage claim, as attorney's fees are an element of damages in a breach of contract action.
[1] A trial court's findings of fact are presumed correct on appeal and will not be disturbed unless clearly erroneous or an abuse of discretion.
[2] Substantial evidence in the record supports a trial court's findings of material breaches justifying lease rescission.
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Join FLexlaw to unlock all legal intelligenceE.M.R. Corporation leased property from William and Elizabeth Flynn, with David and George Gergora as sublessees. The trial court found that material …
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BASKIN, Judge.
Lessee, E.M.R. Corporation [E.M.R.], and sublessees, David A. Gergora and George Gergora [the Gergoras] seek reversal of the final judgment rescinding the long-term lease between appellants and lessors, William Flynn and Elizabeth Flynn [the Flynns]. The Flynns cross-appeal the denial of their motion for attorney’s fees. We affirm the judgment and post-trial orders.
E.M.R. and the Gergoras challenge the trial court’s finding that their material breaches justified rescission. E.M.R. further asserts that the Flynns waived any default by continuing to accept rent. We disagree.
The trial court’s judgment comes to this court clothed with a presumption of correctness, Friedman v. U.S. Home Corp., 452 So. 2d 1111 (Fla. 2d DCA 1984); Taylor Creek Village Association v. Houghton, 349 So. 2d 1219 (Fla. 3d DCA 1977), and will not be disturbed on appeal absent a showing that the findings are clearly erroneous or constitute an abuse of discretion. Manufacturers National Bank v. Canmont International, Inc., 322 So. 2d 565 (Fla. 3d DCA 1975); Morrison v. Smith, 257 So. 2d 623, 624 (Fla. 4th DCA 1972). After reviewing the record, we find that substantial evidence supports the trial court’s findings that material breaches occurred. We find that the Flynns did not waive their right to rescind the lease by accepting rent payments after material breaches occurred. The lease provides that in the absence of a written waiver of default, the lessor may continue to accept benefits.* Raimondi v. I.T. Chips, Inc., 480 So. 2d 240 (Fla. 4th DCA 1985); Philpot v. Bouchelle, 411 So. 2d 1341 (Fla. 1st DCA 1982). We find no merit in appellants’ remaining points.
In their cross-appeal, the Flynns claim the trial court erred in denying them attorney’s fees. They cite a clause providing' for the payment of attorney’s fees in an action brought to enforce the lease. The Flynns contend that they did not waive their entitlement to attorney’s fees when they abandoned their damage claim at trial and pursued only their equitable remedy. We disagree. Attorney’s fees provided for in the contract are an element of damages in an action for breach of contract. See Machado v. Foreign Trade, Inc., 478 So. 2d 405 (Fla. 3d DCA 1985). Thus, when the Flynns waived their damage claim, they also waived attorney’s fees. For these reasons, we affirm.
Affirmed.
HUBBART, J., concurs.
*
The lease provides in pertinent part:
ARTICLE XXVI
MISCELLANEOUS PROVISIONS
It is mutually covenanted and agreed by and between the parties as follows:
4. That no modification, release, discharge or waiver of any provisions hereof shall be of any force, effect, or value, unless in writing, signed by the Lessor or the duly authorized agent of said Lessor.
SCHWARTZ, Chief Judge
(dissenting in part).
In my view, it conclusively appears that the alleged breaches of the lease — all of which were promptly corrected after notice and none of which could be deemed more than trivial in any case — had no material effect upon the landlord’s substantial interests .so as to justify the extreme remedy of cancellation. See Radar v. Prather, 100 Fla. 591, 130 So. 15 (1930); Smith v. Winn Dixie Stores, Inc., 448 So. 2d 62 (Fla. 3d DCA 1984). For this reason, I would reverse the judgment below.
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Sharpe v. Sentry Drugs, Inc., 505 So. 2d 618 (Fla. 3d DCA 1987)…tent. We disagree. Notwithstanding such evidence, the lessee’s act of subleasing a portion of its premises without the lessors’ consent was insufficient, as a matter of law, to support a forfeiture of the parties’ entire lease. See Gergora v. Flynn, 486 So. 2d 5, 7 (Fla. 3d DCA) (Schwartz, C.J., dissenting in part) (violation of lease agreement could not “be deemed more than trivial in any case” and “had no material effect upon the [lessors’] substantial interests so as to justify the extreme remedy of canc…
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Nat'l Home Cmtys., L.L.C. v. Friends OF Sunshine KEY, Inc., 874 So. 2d 631 (Fla. 3d DCA 2004)…ement.” (Site Occupancy Agreement ¶ 22). Florida courts have consistently enforced these types of clauses. See, e.g., Rybovich Boat Works, Inc. v. Atkins, 587 So. 2d 519 (Fla. 4th DCA 1991), rev. denied, 599 So. 2d 654 (Fla.1992); Gergora v. Flynn, 486 So. 2d 5 (Fla. 3d DCA), rev. denied, 500 So. 2d 544 (Fla.1986); Raimondi v. I.T. Chips, Inc., 480 So. 2d 240 (Fla. 4th DCA 1985); Eskridge v. Macklevy, Inc., 468 So. 2d 337 (Fla. 1st DCA), rev. denied, 478 So. 2d 54 (Fla.1985); Philpot v. Bouchelle, 411 So.…
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Linens OF Paris, Inc. v. Seymour Cymet, 510 So. 2d 1021 (Fla. 3d DCA 1987)…ment before this court that it had not exercised the remedy options available to it under the lease, of either cancelling the lease or retaking the property as Linen’s agent, we hold that it waived its remedies under the lease. Cf. Gergora v. Flynn, 486 So. 2d 5, 6 (Fla. 3d DCA) (lessors waived right to attorney’s fees provided for in lease when they abandoned their claims grounded upon the lease in favor of equitable remedy), review denied, 500 So. 2d 544 (Fla.1986); Altiere v. Atlantic Nat’l Bank, 168 So.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rader v. Prather, 100 Fla. 591 (Fla. 1930)
- John v. Philpot, 411 So. 2d 1341 (Fla. 1st DCA 1982)
- Gregorio MacHado and Sounds S.R.L. v. Foreign Trade, Inc., 478 So. 2d 405 (Fla. 3d DCA 1985)
- Mfrs. Nat'l Bank OF Hialeah v. Canmont Int'l, Inc., 322 So. 2d 565 (Fla. 3d DCA 1975)
- Smith v. Winn Dixie Stores, Inc., 448 So. 2d 62 (Fla. 3d DCA 1984)
- Grady B. Morrison and Edna E. Morrison v. Smith, 257 So. 2d 623 (Fla. 4th DCA 1972)
- Friedman v. U.S. Home Corp., 452 So. 2d 1111 (Fla. 2d DCA 1984)
- Taylor Creek Vill. Ass'n, Inc. v. Houghton, 349 So. 2d 1219 (Fla. 3d DCA 1977)
- Raimondi v. I.T. Chips, Inc., 480 So. 2d 240 (Fla. 4th DCA 1985)