MORRIS G. WARNER AND MURRAY M. SCHWARTZMAN, APPELLANTS,
v.
HARRIS MIAMI BEACH, INC., A FLORIDA CORPORATION, ET AL., APPELLEES
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Brokers appealed from a trial court judgment rescinding a contract for sale of an apartment building and denying them brokerage commissions. The appellate court affirmed the rescission but modified the judgment to eliminate interest awarded to the plaintiff, consistent with Florida law on rescission cases.
The court affirmed the rescission of the contract because the seller's material misrepresentations regarding income and expenses entitled the buyer to rescission. The brokers were not entitled to commissions and the seller was not entitled to damages. However, interest should not have been awarded to the plaintiff in the rescission case, as Florida law precludes interest awards in rescission actions.
“The basis for Plaintiff's claim for rescission is that representations made by the seller as to the minimum income and maximum expenses, for the apartment house involved, were not borne out by its books and records as represented in the contract.”
Establishes the factual basis for the rescission claim
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Join FLexlaw to unlock all legal intelligenceSellers made representations about the minimum income and maximum expenses for an apartment building in a sales contract. The trial court found that t…
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The instant action was instituted in the trial court, seeking cancellation and rescission of a contract for the sale of an apartment building. There were certain cross-claims and counterclaims relative to brokerage fees and other matters. The trial judge, after extensive proceedings and final hearing, made the following finding:
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“The basis for Plaintiff’s claim for rescission is that representations made by the seller as to the minimum income and maximum expenses, for the apartment house involved, were not borne out by its books and records as represented in the contract. This Court finds that the records in evidence, indeed, show that the income for the periods in question were substantially overstated by the seller, and that the expenses were substantially in excess of the amount represented. These representations were made by the seller through mistake or negligence, were material, and Plaintiff had a right to rely thereon. Plaintiff is, therefore, entitled to recission. See 27 A.L.R.2d, 31, 32; 17 C.J.S., Contracts, Sec. 147; Williston on Contracts, Sec. 1500.
“The Court further finds that under the circumstances of this case the brokers, SCHWARTZMAN and WARNER are not entitled to a commission; nor is HARRIS MIAMI BEACH, INC., entitled to any damages against them for the failure of the deal to close.”
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An appeal has been prosecuted by the broker, Warner. It was attempted to be joined in by a cooperating broker, Schwartzman. A cross-assignment of error was filed by the seller because the trial judge awarded interest from the date of the filing of the complaint.
As to the granting of rescission, we find no error and are unable to disturb this ruling by the trial court as we have not been provided with a transcript of the testimony upon which judgment of rescission was based. Bostwick v. Bostwick, Fla.App.1967, 201 So.2d 779; Sydney Paper Co. v. Gans, Fla.App.1966, 193 So.2d 41; Wilder v. Altman, Fla.App.1965, 179 So.2d 250; Belfield v. Lochner, Fla. App.1964, 162 So.2d 668.
We find the joinder in appeal by Schwartzman not to be well-taken, as same was not timely filed. Rule 3.11 b, Florida Appellate Rules, 32 F.S.A.
We find merit in the contention of the appellees on the cross-assignment that interest should not have been accorded because of the Supreme Court’s ruling in Paradis v. Second Ave. Used Car Co., Fla.1952, 61 So.2d 919, striking all interest in a rescission case.
*95Therefore, for the reasons stated above, the final judgment here under review is affirmed, except as modified by striking the award of any interest to the plaintiff.1
Affirmed as modified.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Pinzl v. Lapointe, 426 So. 2d 65 (Fla. 5th DCA 1983)…e, 45 So. 2d 674 (Fla.1950); Butts v. Dragstrem, 349 So. 2d 1205 (Fla. 1st DCA 1977); Cath-Art Products Co., Inc. v. Bornman, 260 So. 2d 885 (Fla. 3d DCA 1972); Gonzalez v. Patane, 234 So. 2d 8 (Fla. 3d DCA 1970); Warner v. Harris Miami Beach, Inc., 219 So. 2d 93 (Fla. 3d DCA 1969).…
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Cohen v. Landow, 242 So. 2d 801 (Fla. 3d DCA 1971)…said return, Landow was entitled to rescind said transaction. Riverside Investment Company v. Gibson, 67 Fla. 130, 64 So. 439; Nixon v. Temple Terrace Estates, Inc., 97 Fla. 392, 121 So. 475; Warner v. Harris Miami Beach, Inc., [*803] Fla.App.1969, 219 So. 2d 93; 33 Fla.Jur., Vendor and Purchaser, § 18S. There is no impossibility of return to the status quo. Sophie Cohen was the purchaser of a purchase and sales agreement; she assigned the contract prior to its closing date; after it was assigned, the assig…
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Leon v. W. Collier Props., Inc., 575 So. 2d 1316 (Fla. 2d DCA 1991)…ade the first payment under the agreement for deed to purchase. See Thomas v. Toth, 539 So. 2d 8 (Fla. 2d DCA 1989). The trial court’s reliance on Paradis v. Second Ave. Used Car Co., 61 So. 2d 919 (Fla.1952) and Warner v. Harris Miami Beach, Inc., 219 So. 2d 93 (Fla. 3d DCA 1969), was misplaced. Both of these cases addressed the issue of whether the vendor was liable for interest on earnest money deposits when rescission occurred. Interest was denied because the vendor did not have the benefit of the use o…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wilder v. Altman, 179 So. 2d 250 (Fla. 3d DCA 1965)
- Belfield v. Lochner, 162 So. 2d 668 (Fla. 3d DCA 1964)
- Paradis v. Second Ave. Used Car Co., 61 So. 2d 919 (Fla. 1952)
- Sydney Paper Co. v. Gans, 193 So. 2d 41 (Fla. 3d DCA 1966)
- Bostwick v. Mollie Netcher Bostwick, 201 So. 2d 779 (Fla. 4th DCA 1967)