THOMAS J. MOLE AND SUSAN D. MOLE, APPELLANTS,
v.
FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION, ETC., APPELLEE

Fla. 5th DCA | 1996-04-04
No. 94-1090
THOMPSON, J., and FREEMAN, T.G., Associate Judge, concur.
674 So. 2d 144 Florida District Court of Appeal, Fifth District (1996) Positive Treatment
Cited by 5 cases

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Holding

The court held that the Moles failed to prove their damages under the applicable standard for breach of a construction loan agreement.


Headnotes

[1] A construction loan agreement's disbursement schedule is interpreted according to its plain language, and partial disbursements are permissible so long as they do not exc…

[2] A party claiming damages for breach of a construction contract must present evidence of the reasonable cost to complete any items of construction that were to be complete…

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Facts & Procedural History

The Moles entered into a construction loan agreement with Independence Mortgage Corporation, assigned to First Federal Savings and Loan Association. T…

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Opinion of the Court
GOSHORN, Judge.

GOSHORN, Judge.

Tom and Susan Mole (the Moles) appeal from the order granting First Federal Savings and Loan Association’s (the First) motion for directed verdict on their claim of fraud in the inducement and the order granting the First’s motion for judgment notwithstanding the verdict. We affirm.

The genesis of this protracted litigation was a construction loan agreement between the Moles and Independence Mortgage Corporation (Independence), a wholly owned subsidiary of the First. At the time the loan agreement between the Moles and Independence was signed, the loan was simultaneously assigned to the First, which assumed responsibility for the lender’s obligations. The loan agreement contained a schedule for the disbursement of funds during the construction process. The Moles contend that the First breached the agreement because eleven partial disbursements were made to the contractor instead of six as contemplated by the loan agreement. We agree with the trial judge’s finding in his order granting the motion notwithstanding the verdict that:

[tjhere is no reasonable basis for the Plaintiffs’ construction of the Contract that requires the loan proceeds are required to be disbursed in six (6) specific lump sum draws. Paragraph 12 of the Contract shows that certain percentages of the loan proceeds are to be allotted to the completion of certain designated categories [of] work. There is nothing in the Contract that indicates these disbursements for various categories of work must be in a lump sum for that category. Disbursements are not limited to 6 in number as the Plaintiffs contend and partial disbursements may be made so long as the total percent of disbursements allotted to a specific category does not get ahead of the work done in that category.

The evidence is clear and overwhelming that the Lender properly disbursed, according to the Contract terms, the 80% of the loan proceeds that are in question.

We also agree with the trial judge that the Moles failed to prove their damages under the applicable standard. At trial, the Moles offered the expert testimony of Harold L. Thompson, who concluded that the First had over-disbursed funds to the contractor. Thompson estimated the contractor’s profit, and divided the cost of completion (100%) into the contract price after deducting the estimated profit. In so doing, Thompson opined that the Moles’ home was only 40% completed when the contractor left the job site. From this, he reasoned that because the First had disbursed $187,800 and had received only $94,541.42 in value (based upon his 40% calculation), the First had over-disbursed by $93,258.58. Thompson then concluded that a completion of between 40% and 45% was appropriate. The Moles’ other expert based his estimate of damages on Mr. Thompson’s 45% completion theory.

The trial judge ultimately struck the testimony of these two experts post trial, but in so doing, found that the Moles had failed in their burden of proof, even considering the testimony of their two experts. We agree. The evidence shows that the First disbursed 80% of the construction loan before the contractor left the job site. The proper measure of the Moles’ damages, if any, would have been the reasonable cost to complete any items of construction that were to be completed prior to the 80% draw disbursement. Cf. American Structural Sys. Inc. v. R.B. Gay Constr. Co., 619 So. 2d 366, 367 (Fla. 1st DCA 1993) (“The measure of damages for cost to complete after breach of a construction contract where the contractor failed to complete performance is the difference between the contract price and the reasonable cost to complete the improvements in accordance with the contract.”); see also Larry R. Leiby, Florida Construction Law Manual, § 14.03 (1981). Because the Moles failed to present any such proof, the trial court correctly granted the First’s motion for judgment notwithstanding the verdict.

Finally, we do not address the Moles’ procedural objection to the grounds upon which the motion for judgment notwithstanding the verdict was based. This objection appears to have been raised for the first time on appeal and thus has been waived. See Parlier v. Eagle-Picher Indus., Inc., 622 So. 2d 479, 480-81 (Fla. 5th DCA 1993); Commodore Plaza at Century 21 Condominium Ass’n, Inc. v. Cohen, 350 So. 2d 502 (Fla. 3d DCA 1977), cert. denied, 362 So. 2d 1051 (Fla.1978).

AFFIRMED.

THOMPSON, J., and FREEMAN, T.G., Associate Judge, concur.


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Cited By

  • A.L. Williams v. Salem Free Will Baptist Church, 784 So. 2d 1232 (Fla. 1st DCA 2001)
    …uip. Corp., 676 So. 2d 981, 982 (Fla. 3d DCA 1996) (applying waiver to failure of the party moving for summary judgment to state with particularity in his motion a ground he argued at the hearing on the motion); Mole v. First Fed. Sav. & Loan Ass’n, 674 So. 2d 144, 145 (Fla. 5th DCA 1996) (applying waiver to an objection to the procedural grounds upon which the motion for judgment notwithstanding the verdict was based). In this case, Williams made no objection to the procedure employed by the trial court when…
  • Home AT Last Adoption Agency, Inc. v. V.M., 126 So. 3d 1236 (Fla. 5th DCA 2013)
    …ding, he did not object to the trial court permitting the adoption agency to file an amended petition rather than a new termination proceeding. Procedural irregularities to which no objection is made are waived. Mole v. First Fed. Sav. & Loan Ass’n, 674 So. 2d 144, 145 (Fla. 5th DCA 1996); see also Williams v. Salem Free Will Baptist Church, 784 So. 2d 1282 (Fla. 1st DCA 2001) (procedural error not timely raised in trial court is waived unless party asserting error can demonstrate such waiver would be denial…
  • …alto Legal, LLC and Stephen Montalto, for appellant. Delgado Vega PLLC and Daniel R. Vega and Arielle J. Brazeal, for appellees. Before FERNANDEZ, LINDSEY and LOBREE, JJ. PER CURIAM. Affirmed. See Mole v. First Fed. Sav. & Loan Ass’n, 674 So. 2d 144 2 (Fla. 5th DCA 1996) (trial court did not err in granting judgment in accordance with motion for directed verdict where plaintiff failed to present proof of proper measure of damages, which was difference between contract price and reasonab…

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