79 So. 3d 91
Fla. Dist. Ct. App.2012Background
- Daneri entered a condo contract with BCRE for 20% deposit; >10% of deposit held in escrow with remaining funds subject to construction use if allowed by statute.
- Contract provided Daneri could recover 25% of the deposit if she defaulted; 75% would go to the developer.
- In Oct 2008, BCRE notified Daneri of a default and withheld refund, seeking lender consent before returning funds.
- BCRE later claimed lender consent permitted returning 25% if Daneri signed a Termination Agreement; Daneri rejected the offer and sued.
- A later escrow agreement between BCRE, its lender, and the escrow agent raised questions about compliance with §718.202 and the effect on deposits.
- The trial court granted summary judgment for BCRE on count III; on appeal, the court found factual disputes—particularly whether Daneri defaulted or terminated—precluded resolution as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Release of 10% under 718.202(1) disputed | Daneri contends BCRE violated 718.202(1) by withholding the 10% release without proper default/termination terms. | BCRE argues Daneri defaulted and thus the release terms permitted withholding pending lender issues. | Issue of fact; summary judgment reversed. |
| Use of funds above 10% for construction under 718.202(2)-(3) | Daneri contends funds above 10% were improperly diverted from escrow to construction without statutory compliance. | BCRE asserts contract language and statutes authorize use of excess deposits for construction. | BCRE complied; no provision voided on this point. |
| Impact of lender consent arrangement on statute compliance | Daneri argues the lender-driven arrangement usurped statutory protections and violated §718.202. | BCRE maintains lender involvement does not undermine the statute's escrow framework when properly disclosed. | Potential violation; remand for factual resolution. |
Key Cases Cited
- First Sarasota Serv. Corp. v. Miller, 450 So. 2d 875 (Fla. 2d DCA 1984) (escrow protections for preconstruction deposits)
- Ric-Rec, Inc. v. Capri Gardens Condo., Inc., 379 So. 2d 407 (Fla. 3d DCA 1980) (reversing summary judgment where issues were in dispute)
- Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla.2000) (summary judgment standard; de novo review)
- St. Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071 (Fla.1982) (statutory interpretation—read statute as whole)
- Forsythe v. Longboat Key Erosion Control Dist., 604 So.2d 452 (Fla.1992) (statutory interpretation and harmony of provisions)
- Van Vorgue v. Rankin, 41 So.3d 849 (Fla.2010) (limitations on use of escrow funds governed by agreement terms)
- Krol v. City of Orlando, 778 So.2d 490 (Fla.5th DCA 2001) (summary judgment standard; de novo review)