Summary
holding that a seller did not breach a contract for the sale of real property by failing to timely repair the property when the contract had set no timeframe for the repairs, the buyers had not demanded completion of the repairs by a certain date, and time was not stated to be of the essence
Summary of this case from Pretka v. Kolter City Plaza II, Inc.Opinion
No. 95-1857.
February 7, 1996. Rehearing Denied March 6, 1996.
An Appeal from the Circuit Court for Dade County, No. 93-4264; Norman Gerstein, Judge.
Alvarez, Armas Borron, and J. Alfredo de Armas, Coral Gables, for appellant.
Kluger, Peretz, Kaplan Berlin, and Alan J. Kluger, and Michael D. Ehrenstein, Miami, for appellees.
Before LEVY, GERSTEN and GREEN, JJ.
Appellant Caronte Enterprises, Inc. (seller), appeals an adverse judgment in a breach of contract action involving the purchase and sale of real property. We reverse.
The record reflects that appellees Jerome and Gwen Berlin (buyers) entered into a standard real estate purchase and sale contract with the seller, which provided that the seller would repair certain damage prior to closing. No specific closing date was set, no time limits were delineated for effectuating the repairs, and the standard "time is of the essence" clause was crossed out of the contract.
The buyers complained for several months thereafter that the repairs were not progressing rapidly enough. However no formal demand for completion by a date certain was made. Eventually, the seller informed the buyers that all repairs had been completed pursuant to the contract terms. The buyers disagreed and brought suit. A jury verdict was rendered in favor of the buyers, and the seller's subsequent motion for judgment notwithstanding the verdict was denied.
We find that the trial court erred in failing to enter a judgment notwithstanding the verdict in favor of the seller. This is so for the plain and simple reason that the contract did not make time of the essence as to closing, and the buyers never demanded completion of the repairs by a date certain. See American Somax Ventures v. Touma, 547 So.2d 1266 (Fla. 4th DCA 1989); Henry v. Ecker, 415 So.2d 137 (Fla. 5th DCA 1982), rev. denied, 429 So.2d 5 (Fla. 1983). Accordingly, we reverse and remand with directions to enter a judgment notwithstanding the verdict in favor of the seller.
Reversed and remanded with instructions.