HARRY BROWN AND NESHE BROWN, APPELLANTS,
v.
IRVING FINE, APPELLEE
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The Florida District Court of Appeal affirmed the dismissal of a claim for a deposit on a real estate transaction, finding that the sellers could not recover a deposit that was never actually made. However, the court reversed the dismissal of the claim for actual damages, remanding for consideration of a transfer to a court with proper jurisdiction.
No, sellers cannot recover a deposit that was never made. Yes, a claim for actual damages may be transferred to a court with proper jurisdiction if the appellant properly moves for such an order.
“The complaint for recovery of a deposit not actually made was properly dismissed.”
Establishes the court's reasoning for affirming the dismissal of the claim for the deposit.
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Join FLexlaw to unlock all legal intelligenceThe appellants, as sellers of real estate, sued the appellee-purchaser for a deposit that was never made. The sellers proceeded to closing despite the…
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The appellants, who were plaintiffs in the trial court, brought an action at law to recover the amount of a “deposit” upon a real estate transaction. The appellants were sellers and they proceeded to the closing even though the purchaser had failed to make the deposit provided by the contract of sale. The appellee-defendant refused to proceed with the closing. In addition to the above stated facts, the complaint alleged actual damages in amount of $127.50. It should be noted that the ap-pellee has not favored this court with a brief as is his duty. Rule 3.7, subd. b, Florida Appellate Rules, 31 F.S.A.; Bolles v. Carson, 73 Fla. 504, 74 So. 509.
The complaint for recovery of a deposit not actually made was properly dismissed. The motion for dismissal was upon two grounds: one, failure to state a cause of action; two, jurisdiction of the amount in controversy. Upon the latter ground the action for actual damages may be transferred to the court having jurisdiction of the amount involved. Rule 1.39 (b), 1954 Rules of Civil Procedure, 30 F. S.A. The cause is remanded for such an order, if the appellant shall properly move for the order.
Affirmed in part, reversed in part.
CARROLL, CHAS., C. J„ and HORTON, J., concur.
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Citator
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Campbell v. Salman, 384 So. 2d 1331 (Fla. 3d DCA 1980)…a reasonable construction thereof evinces an intention of the parties that the buyer was required to deposit the sum of $15,000. See 11 Fla.Jur.2d Contracts § 121. We have no quarrel with that principle but in view of our holding, in Brown v. Fine, 102 So. 2d 830 (Fla.3d DCA 1958), that the seller may not recover earnest money not actually deposited, we find that the trial court properly entered summary judgment against the sellers with respect to Count I of the complaint.2 With respect to Count II of the s…
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Manfred Brecker and Ann Brecker v. Furman, 508 So. 2d 514 (Fla. 4th DCA 1987)…a reasonable construction thereof evinces an intention of the parties that the buyer was required to deposit the sum of $15,000. See 11 Fla.Jur.2d Contracts § 121. We have no quarrel with that principle but in view of our holding, in Brown v. Fine, 102 So. 2d 830 (Fla.3d DCA 1958), that the seller may not recover earnest money not actually deposited, we find that the trial court properly entered summary judgment against the sellers with respect to Count I of the complaint. 384 So. 2d at 1333. However, in a…
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Bowman v. Bowman, 318 So. 2d 186 (Fla. 4th DCA 1975)…ible error has been demonstrated and the judgment appealed from should be affirmed. We cannot help but note, however, the fact that the appellee has not favored this court with a brief as is, we perceive to be, his duty. Brown v. Fine, Fla.App.1958, 102 So. 2d 830. As this court observed in Ramirez v. Ramirez, Fla.App.1975, 309 So. 2d 25 (footnote 1): “. . . Failure to file a brief not only places an undue burden upon the appellate court but, additionally, reflects an omission of the responsibility on the pa…
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- Bolles v. Carson, 73 Fla. 504 (Fla. 1917)