BERNARD HOROVITZ, FRANKLIN Z. GLICKMAN, LEONARD HAYET AND AVINASH GUPTA, AS GENERAL PARTNERS OF SKHHP BROWARD BUILDING PARTNERSHIP, A FLORIDA GENERAL PARTNERSHIP, APPELLANTS,
v.
NATHAN LEVINE, BENJAMIN ROSENZWEIG, SEYMOUR EBNER, BENJAMIN ROSENZWEIG, AND MORRIS YAMNER AS EXECUTORS OF THE ESTATE OF HARRY WEBER, APPELLEES
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The court held that the parties' conduct subsequent to the agreed completion date waived the "time is of the essence" provision in their settlement agreement.
Appellants contested foreclosure of a note and mortgage, arguing appellees did not complete a parking lot by the agreed date per a settlement agreemen…
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STEVENSON, J.
This is an appeal from an order foreclosing a note and mortgage. Appellants contested enforcement of the note and mortgage on the ground that appellees did not comply with a settlement agreement between the parties, which provided that if appellees did not complete construction of a parking lot on the mortgaged property by a specified date, appellants could cancel the note and mortgage and record satisfaction of the note. We affirm the trial court’s finding that the parties, by their actions subsequent to the agreed time of performance, did not treat time as of the essence.
Appellees finished the project 45 days late. The trial court found, inter alia, that' appellants allowed appellees to expend money and resources to finish the parking lot after the completion date, appellants knew that appellees were continuing to work on the parking lot after the agreed-upon date of completion and did not object to appellees’ presence on the property after that time, and appellants accepted the use and benefit of the finished parking lot. We affirm the entry of judgment in favor of appellees/mortgagees because we find support in the record for the trial court’s determination that the purported “time is of the essence” proviso in the agreement was waived by the conduct of the parties subsequent to the agreed upon date of completion. See Rybovich Boat Works, Inc. v. Atkins, 587 So. 2d 519, 521 (Fla. 4th DCA 1991); National Exhibition Co. v. Ball, 139 So. 2d 489, 493 (Fla. 2d DCA 1962).
We have considered the other issues raised on appeal and find no error. Accordingly, the final judgment under review is AFFIRMED.
WARNER, C J., and STONE, J., concur.
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Legacy Place Apt. Homes, LLC. v. PGA Gateway, Ltd., 65 So. 3d 644 (Fla. 4th DCA 2011)…generally unavailable where a party has materially breached the terms of the agreement. Nat’l Constructors, Inc. v. Ellenberg, 681 So. 2d 791, 793 (Fla. 3d DCA 1996). A time is of the essence provision may nevertheless be waived. Horovitz v. Levine, 755 So. 2d 687 (Fla. 4th DCA 1999). Because the trial court did not consider appellee’s waiver arguments, we remand for the trial court to make specific findings of fact and conclusions of law regarding whether appellant waived its right to demand compliance with…
Authorities Cited
- The Nat'l Exhibition Co. v. Ball, 139 So. 2d 489 (Fla. 2d DCA 1962)
- Rybovich Boat Works, Inc. v. Atkins, 587 So. 2d 519 (Fla. 4th DCA 1991)