final until disposition of timely filed motion for rehearing.
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,
& Silver and Ira S. Silver, for appellees.
ROTHENBERG, C.J., and SUAREZ and FERNANDEZ, JJ.
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.
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.
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.
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.
Agreement contains a Mortgage Rider which states, in
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 ...