455 So. 2d 1120 | Fla. Dist. Ct. App. | 1984
We do not believe a protracted recitation of the facts of this ease will contribute to the body of the law. Suffice it to say, a homeowner, in an amendment to a contract for the construction of a pool, agreed to a “late charge” of 1% for each day he failed to make the final payment thereon. The balance owed on the pool was $1,880 and by the time the motion to dismiss was heard the late charge totalled $4,414.
The motion to dismiss the pool builder’s complaint was filed by the homeowner upon the basis that the late charge was tantamount to interest at a usurious rate. The trial court agreed and granted the motion. We reverse.
This controversy should not have been disposed of on a motion to dismiss. From the four corners of the complaint, it cannot be determined whether the “late charge” was a provision to induce timely payment of an obligation, see Homewood Investment Co. v. Moses, 608 P.2d 503 (Nev.1980), a forbearance to enforce the collection of a debt, or a provision for liquidated damages. Moreover, assuming it was a liquidated damages provision, there would remain the question of whether it was reasonably proportionate to the damages sustained.
This cause is reversed and remanded for further proceedings.
REVERSED AND REMANDED.
