Shelby Homes at Millstone, Inc. v. Cullinane, 4D10-289
May 18, 2011

Four months prior to expiration of the contractual time period for completion of a home, the buyers’ counsel sent a letter to the seller’s counsel stating that the home buyers “may not be able to obtain financing under the same terms and conditions as originally intended” and that certain allegedly fraudulent representations by the seller “may render closing impossible.” The buyers also requested various documents from the seller. The seller replied, in a letter from its counsel, that the seller would provide the requested documents once a closing date was scheduled and the buyers had confirmed they were in fact closing. The seller informed the buyers that if the buyers failed to close, the seller would consider them in default and keep their deposits. The buyers never replied. The seller completed the home (after expiration of the contractual time period), sold the home to a different buyer, and kept the original buyers’ deposits.

The buyers sued for breach of contract, seeking return of their deposits, based on the seller’s failure to complete construction of the home in the time required by the contract. The seller raised the defense of anticipatory repudiation based on the buyers’ letter and contract language allowing the seller to treat any written communication informing the seller that the buyers “may be unable or unwilling to close” as an anticipatory breach. The trial court found that the buyers’ letter did not amount to an anticipatory breach and that the seller’s letter in response did not require a response from the buyers confirming that they would close.

On appeal, the Fourth DCA held that the buyers’ letter fell within the contract’s provision allowing the seller to treat it as an indication of inability or unwillingness to close and therefore an anticipatory breach. Despite this holding, the Fourth DCA affirmed based upon the seller’s failure to treat the anticipatory breach according to the applicable procedures contained in the contract. The Fourth DCA stated that this failure to follow its own contract’s remedies led the seller to ultimately breach the contract by failing to timely complete the home. The Fourth DCA held that the trial court had reached the right result for the wrong reasons. In that situation, the Court can still affirm the result. This is sometimes called the “tipsy coachman” rule. See Dade Cty Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644-45 (Fla. 1999).

Dedmon and Kelly v. Kelly, 4D09-3572
May 18, 2011

The Fourth District wrote to address an appeal from an order of dismissal of appellants’ complaint for failure to appear at a case management conference. A clerk’s default was entered in favor of appellants, and the appellee’s motion to set aside default was denied by the magistrate on September 3, 2008. On July 1, 2009 appellants’ new counsel filed their Motion for Approval of Stipulation for Substitution of Counsel and sent copies to appellee’s counsel and to appellants’ former counsel at an address different from the one used by former counsel in earlier pleadings.  The trial court set a case management conference was set for July 30, 2009, which stated that there had been no record activity since September 3, 2008.  The order was sent to appellants’ former counsel. Appellants’ new counsel failed to show up, and the trial court dismissed without prejudice pursuant to Fla. R. Civ. P. 1.200(c), which allows a court to dismiss for failure to attend a case management conference, and upon Fla. R. Civ. P. 1.420(e), which provides for dismissal for failure to prosecute an action.

On appeal, the Fourth District agreed with appellants that, under First Fairway Condominium I Ass’n v. Gulfstream Roofing, Inc., 701 So.2d 652 (Fla. 4th DCA 1997), the trial court erred in imposing the harsh sanction of dismissal without finding that the party’s conduct was “willful and contumacious.”  The trial court’s order failed to include an express finding of willful and contumacious behavior. Without considering the lack of notice requirement to the appellants, the court also held that appellants’ alleged inaction for a period of time less than one year was insufficient cause for dismissal under Fla. R. Civ. P. 1.420(e). The court reversed and remanded.

The issue as to whether or not an insurance company can deny coverage to an innocent co-insured based on the failure of a spouse to attend an examination under oath (EUO) was resolved in favor of our client, the innocent co-insured.

Our client’s home was burglarized by an unknown assailant. The client preformed all conditions precedent to coverage. The insurance company required that the husband, who lived at home at the time of the burglary and was the person who discovered the home burglarized, sit for an EUO. The problem was that by the time the EUO was scheduled, the husband was no longer living at home; and in fact a restraining order for domestic violence had been issued against him. Counsel for the client argued the innocent co-insured exception at the trial level, and we reasserted it at the appellate level.

The Circuit Court sitting in its appellate capacity overturned the trial courts summary judgment. Further, the reviewing court held that where an insurance policy does not expressly state whether the obligation to attend an EUO is joint or several, the ambiguity should be resolved as requiring the obligations and coverage to apply severally. The summary judgment finding that the failure of the husband to submit to an EUO was a material breach which barred the insured from recovering under the policy was reversed and remanded.  Our client was awarded appellate attorney fees pursuant to Florida Statute 627.428(1).