Opinion
No. 76-1993.
April 10, 1978. Rehearing Denied May 23, 1978.
Appeal from the Circuit Court, Broward County, George Richardson, Jr., J.
David M. Goldstein, North Miami, for appellant.
Fred J. Ward, Hallandale, for appellee Bouley.
Our consideration of the briefs and record convinces us that there is adequate support in the record for the trial court's finding that appellee Paul Bouley is not liable individually to appellant.
However, we find no rational basis in the evidence for the award to appellant of $500.00 as damages. The liquidated damages provision of the lease provided for $15,000.00 as liquidated damages in the event of a breach by appellee Bomac. The money was never deposited with appellant because appellee's check was returned for insufficient funds. However, the liquidated damage provision is not nullified by appellee failing to deposit the money provided therein. The amount of damages remains liquidated by the parties. The determination in the final analysis of the amount thereof should be made in accordance with the formula set forth in Bruce Builders, Inc. v. Goodwin, 317 So.2d 868 (Fla. 4th DCA 1975).
Accordingly, we reverse the damages aspect of the judgment appealed from and remand the cause for a new trial on damages only.
AFFIRMED, in part; REVERSED, in part; and REMANDED, with directions.
ALDERMAN, C.J., and DOWNEY, J., concur.
CROSS, J., dissents, with opinion.
I respectfully dissent.
The majority would remand this cause for a re-determination of damages on the authority of Bruce Builders, Inc. v. Goodwin, 317 So.2d 868 (Fla. 4th DCA 1975). The Bruce Builders case recognizes that even if a valid clause for liquidated damages is included in an executory contract, equity may relieve a party from forfeiture if circumstances demonstrate that it would be unconscionable for the non-breaching party to retain such liquidated sum. In the instant case, the able trial court made a finding of fact that appellant suffered no loss as a result of the breach of the contract of lease. Thus, it appears that the trial court was fully authorized and eminently correct in giving no force and effect to the liquidated damages clause. There has been no showing of any error, and therefore I would affirm the judgment.