FRANK A. FUTERNICK AND KAREN BEBER, APPELLANTS,
v.
NATALIA M. TRUSHINA, APPELLEE

Fla. 3d DCA | 2016-11-23
Nos. 3D14-3040, 3D15-2922
Before SALTER, EMAS and FERNANDEZ, JJ.
207 So. 3d 329 Florida District Court of Appeal, Third District (2016)

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Holding

The court held that the trial court did not err in awarding delay of performance damages based on increased fair market rental value and in awarding post-judgment interest at a rate lower than the statutory rate.


Headnotes

[1] A trial court's award of delay of performance damages is supported by competent substantial evidence if the determination of fair market rental value is based on testimon…

[2] A party may not appeal a trial court's ruling that they themselves advocated for in the lower court.

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Facts & Procedural History

A buyer sued sellers for specific performance of a home sale contract. After the trial court granted specific performance and awarded delay damages, t…

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Opinion of the Court
EMAS, J.

EMAS, J.

In this consolidated appeal, appellants Frank Futernick and Karen Beber appeal the trial court’s orders, which awarded delay of performance damages to appellee, Natalia Trushina, and awarded post-judgment interest to appellants at the rate of only 1.49%, instead of at the statutory rate. We affirm.

This cause began when Trushina, the buyer, filed suit against Futernick and Be-ber, the sellers, seeking specific performance on their obligations under a contract for the sale and purchase of the sellers’ marital home. Futernick and Beber defended against the claim for specific performance, asserting that Futernick had properly exercised his right of first refusal pursuant to Futernick and Beber’s marital settlement agreement.

The trial court determined that Futer-nick and Beber breached the contract by failing to convey title to Trushina, and entered a partial final judgment, granting specific performance in favor of Trushina, and ordering Futernick and Beber to convey title to Trushina in accordance with the contract. Thereafter, the trial court conducted a trial on damages, and determined that the fair rental value of the property during the relevant time period was $12,000 per month. However, the court determined that Trushina was not entitled to damages for lost rents and profits, because the lost rental value of the property was offset (and exceeded) by Fu-ternick’s and Beber’s payments of property taxes, insurance, and statutory interest on the sales proceeds.

The court entered final judgment, which Futernick and Beber appealed. Futernick and Beber also sought a stay of execution pending appeal. The trial court granted the stay, conditioned upon the posting of a supersedeas bond of $250,000 to cover delay of performance damages. On appeal *331from the final judgment, we affirmed. See Futernick v. Trushina, 146 So.3d 63 (Fla. 3d DCA 2014).

On remand, further proceedings were held in which the trial court determined the amount of delay of performance damages. At that evidentiary hearing, the trial court took testimony and determined that the fair market rental value of the property during the relevant time period (i.e., from the stay of execution and during the pendency of the appeal) had increased from $12,000 to $14,000 per month, and awarded Trushina delay damages in the amount of $224,000, based upon the 16-month delay resulting from the stay of the judgment. We find no error in the trial court’s determination of the fair market rental value of the property, and reject the contention by Futernick and Beber that this determination was not supported by competent substantial evidence.1

We also hold that the trial court did not err in its determination that Futernick and Beber were not entitled to post-judgment interest at the then—statutory rate of 4.75%.2 We agree with the analysis of the Second District in Richardson v. Turner, 810 So.2d 1039 (Fla. 2d DCA 2002) and conclude that Richardson is fully applicable to the circumstances presented by this case.

Affirmed.


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