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Daneri v. BCRE Brickell, LLC

Florida Court of Appeal, Third District

January 4, 2012

Fadia DANERI, et al., Appellants,

Page 92

Vila, Padron & Diaz and Kara D. Phinney, for appellants.

Brian K. Goodkind; Yoss and Franchesco Soto; Krinzman, Huss, Lubetsky and Neale J. Poller, and Cary A. Lubetsky, Miami, for appellee.


Page 93


Appellants/plaintiffs Fadia Daneri, Paola Dickinson, Paola Daneri, Consuelo Dickinson, and Jaime Dickinson (collectively, " Daneri" ) appeal the trial court's Final Summary Judgment in favor of appellee BCRE Brickell, LLC with regard to count III.[1] We reverse because there are issues of fact that affect whether BCRE adhered to section 718.202, Florida Statutes (2008). The record suggests BCRE may have illegally withheld a portion of Daneri's deposit because it conditioned return of Daneri's deposit, a return to which it conceded Daneri was entitled, upon its lender's consent to return of the deposit. The requirement for lender's consent was imposed by an agreement to which Daneri was not a party. Encumbering return of the first 10% of a buyer's deposit toward the purchase price of a condominium, through a contract with someone other than the buyer, would violate the statute. We cannot, however, resolve the legal issue of violation of the statute without determining whether Daneri " defaulted" under the contract, which the pleadings below suggest is in dispute. Thus, we reverse the summary judgment.

Daneri entered into a contract with BCRE for the sale and purchase of a condominium. The contract required Daneri to make a 20% deposit towards the purchase price of the condominium. In the event of a buyer default, Daneri was entitled to 25% of her deposit, and the developer would be entitled to the remaining 75%.

In October 2008, the developer notified Daneri, by letter, that she had defaulted on the agreement. BCRE did not return any of Daneri's deposit at that time. Instead, BCRE explained in its letter to Daneri that BCRE's lender needed to consent to the refund before returning the money to Daneri. BCRE advised Daneri's lawyers that BCRE had received consent from its lender to return 25% of Daneri's deposit, so long as she executed a release entitled " Termination Agreement." Daneri's counsel rejected the offer and filed suit against BCRE. The trial court entered summary judgment in Daneri's favor on counts I and II, which was not appealed. The trial court also reserved jurisdiction to determine entitlement to other relief deemed appropriate.

The day before the hearing regarding Daneri's other relief, BCRE filed an affidavit that revealed an agreement between the escrow agent, BCRE, and BCRE's lender. BCRE had entered into an agreement with the construction lender that promised the lender whatever interest BCRE had in all of the construction's purchase agreements and escrow deposits. The agreement, entitled the " Escrow Acknowledgement and Agreement," was between BCRE, its lender, and the escrow agent. Daneri filed an amended complaint to include a third count to void the agreement for violation of the statute. Daneri argued in count III that the contract should be voided because BCRE violated section 718.202. The trial court entered final summary judgment for BCRE, and this appeal followed.

Summary judgment is proper only if no genuine issue of material fact exists and if the moving party is entitled to a judgment as a matter of law. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). The standard of review for summary judgment is de novo. Id. In reviewing a summary judgment, this Court " must consider the evidence contained

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in the record, including any supporting affidavits, in the light most favorable to the non-moving party ... and if the slightest doubt exists, the summary judgment must be reversed." Krol v. City of Orlando, 778 So.2d 490, 492 (Fla. 5th DCA 2001).

Resolution of this case requires the Court to interpret section 718.202, which imposes requirements upon developers who take deposits from buyers before substantial completion of the condominium project. When the Court interprets a statute, the Court must follow the plain meaning of the statute in light of the express legislative intent contained in the statute's language. See St. Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071, 1073 (Fla.1982). When interpreting a statute, we interpret its language and the resulting operation of its terms by reading the statute as a whole to give it meaning in its entirety. Forsythe v. Longboat Key Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992). Each section of the statute must be read in light of its interaction with other parts of the statute so that this Court's interpretation " give[s] full effect to all statutory provisions in harmony with one another." Id. And " the fact that the legislature may not have contemplated a particular situation does not make the statute ambiguous." Id. at 456. Similarly, limitations upon use of money placed in escrow pursuant to an agreement are governed by the terms of the agreement. Van Vorgue v. Rankin, 41 So.3d 849, 853 (Fla.2010).

In this case, the statute's purpose in imposing conditions upon use of purchaser deposits, by requiring placing the funds in escrow and limiting release of the funds placed in escrow, is " to protect purchasers under preconstruction condominium contracts from loss of their deposits should the developer fail to perform its ...

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