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Penny's Investment Corp. v. Gasamanes

Florida Court of Appeals, Third District

September 20, 2017

Penny's Investment Corp., Appellant,
v.
Alexander Gasamanes and Yeremy Hernandez Prieto, Appellees.

         Not final until disposition of timely filed motion for rehearing.

          An appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 11-39836, Antonio Marin, Judge.

          Benitez & Associates and Leo Benitez and Lizette Benitez, for appellant.

          Silver & Silver and Ira S. Silver, for appellees.

          Before ROTHENBERG, C.J., and SUAREZ and FERNANDEZ, JJ.

          SUAREZ, J.

         Penny's Investment Corp. (Penny's) appeals a final judgment granting Appellees Alexander Gasamanes ("Gasamanes") and Yeremy Hernandez Prieto ("Prieto") a refund of their home construction deposits. We affirm.

         On March 20, 2011, Appellees executed a Sales Agreement ("Agreement") to purchase a home which was to be constructed by Penny's. Penny's actually executed the Agreement on March 23, 2011 because the person with whom Appellees interacted on March 20th was merely a sales agent for a different entity and was not authorized to execute the Agreement on Penny's behalf. The Purchase price of the home was $239, 900.00, and nothing in the Agreement indicated that the price of the home included any additional cost resulting from the location of the lot on which the home was to be built.[1]

         It is undisputed that on March 20, 2011 Appellees provided the sales agent with a check in the amount of $5, 000.00. It is also undisputed that on March 23, 2011 Appellee Gasamanes went to the offices of the sales agent and delivered two additional checks, one in the amount of $18, 990.00 and another for $15, 000.00. The Agreement acknowledges receipt of the original $5, 000.00 and sets forth a requirement that an "Additional 5% deposit" in the amount of $18, 990.00 is due within 30 days after acceptance of the contract by seller. However, the Agreement makes no provision for the $15, 000.00 payment. The initial check and the $18, 990.00 check total $23, 990.00, exactly 10% of the purchase price of the home, and the Agreement indicates that the balance due for the home after the deposits is $215, 910.00.

         The parties disagree about the purpose of the additional check. Penny's claims it is an additional deposit required for a premium lot and a notation to that effect is written on the memo portion of the check. Appellees testified that they were never advised of any premium price for the location of the home they selected and deny any knowledge of any such additional deposit requirement. It is undisputed that the notation on the check was written in by the sales agent who received the check and not by either Appellee. It is also undisputed that the Agreement does not contain any provision or additional language indicating that the lot selected by Appellees was a "premium lot" or that there was any additional cost associated with the lot.[2]

         The Agreement contains a Mortgage Rider which states, in pertinent part:

THE PURCHASER'S obligation to close the above referenced Contract is subject to the PURCHASER obtaining a Mortgage Commitment in the amount of $191, 920.
(A) The PURCHASER agrees to make application with FLORIDA MORTGAGE UNDERWRITERS, INC. the Lender selected by the SELLER and to execute all necessary papers for a Conventional Mortgage Loan (prevailing rates and terms) in the amount ...

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