Opinion
No. 75-874.
August 31, 1976. Rehearing Denied October 1, 1976.
Appeal from the Circuit Court, Broward County, Victor O. Wehle, J.
J. Bart Budetti, City Atty., Hollywood, and Ronald B. Sladon, P.A., Fort Lauderdale, for appellant.
Joseph A. Gassen of Jepeway, Gassen Jepeway, Miami, for appellee.
We have studied the briefs and record (including the testimony) in this case and conclude that the trial court erred in finding that the appellant breached the lease contract between the parties. We hold that the parties mutually abandoned the original lease and thereafter attempted to negotiate a new agreement, but their attempt proved fruitless, through the fault of no one.
We feel however that it would be inequitable for appellant to keep the "rent" payments which appellee made to it, totalling $21,250.00. That amount plus $6,928.17 interest, should, as the trial court found, be returned to the appellee. We would also have affirmed the allowance of one-half of the permit fee were it not for the case of Hollywood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10 (Fla. 1976), quashing in part the decision of this court reported at 283 So.2d 867. We read those decisions to hold that under the circumstances found in the case at bar, the building permit fee is not recoverable. Since there was no breach by the appellant, appellee cannot prevail on his cross appeal seeking greater damages.
Accordingly, the judgment appealed from is remanded with directions to enter an amended judgment in favor of appellee in the amount of $28,178.17.
Affirmed as modified.
WALDEN and DOWNEY, JJ., and ANDREWS, JOHN S., Associate Judge, concur.