Godwin v. United Southern Bank

District Court of Appeal of Florida

Godwin v. United Southern Bank

688 So. 2d 373, 1997 Fla. App. LEXIS 229, 1997 WL 24762

CourtDistrict Court of Appeal of Florida

DecidedJanuary 24, 1997

DocketNo. 95-2044

StatusPublished

This text of 688 So. 2d 373 (Godwin v. United Southern Bank) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Godwin v. United Southern Bank, 688 So. 2d 373, 1997 Fla. App. LEXIS 229, 1997 WL 24762 (Fla. Ct. App. 1997).

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Opinions

PETERSON, Chief Judge.

Robert and Sharon Godwin entered into a construction loan agreement with United Southern Bank (United). They were dissatisfied with the construction of their home and brought a multi-count complaint alleging negligence, breach of fiduciary duty, intentional and negligent failure to disclose material facts, and breach of the construction loan agreement. We agree with the trial court’s dismissal of all of the counts of the complaint except for the last count, breach of the construction loan agreement.

The construction loan agreement states that “[C]onstruction shall not be deemed complete for purposes of final disbursement unless and until Lender shall have received all of the following: ... Acceptance of the completed improvements by Lender and Borrower.” The Godwins allege in the last count of their complaint that,’ contrary to the parties’ agreement, the final draw of the construction loan was released to the contractor without their “endorsement,” an allegation that may be fairly interpreted as without their acceptance. The Godwins further allege that United’s construction inspector, also a member of United’s board of directors, had informed them that he would not approve the release of the final draw because defects existed in the construction of their home. We believe that these allegations are sufficient to allege a breach of the construction loan agreement. We vacate the order of dismissal as to this issue and remand.

ORDER VACATED; REMANDED.

ANTOON, J., concurs. DAUKSCH, J., dissents, with opinion.

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PETERSON, Chief Judge.

Robert and Sharon Godwin entered into a construction loan agreement with United Southern Bank (United). They were dissatisfied with the construction of their home and brought a multi-count complaint alleging negligence, breach of fiduciary duty, intentional and negligent failure to disclose material facts, and breach of the construction loan agreement. We agree with the trial court’s dismissal of all of the counts of the complaint except for the last count, breach of the construction loan agreement.

The construction loan agreement states that “[C]onstruction shall not be deemed complete for purposes of final disbursement unless and until Lender shall have received all of the following: ... Acceptance of the completed improvements by Lender and Borrower.” The Godwins allege in the last count of their complaint that,’ contrary to the parties’ agreement, the final draw of the construction loan was released to the contractor without their “endorsement,” an allegation that may be fairly interpreted as without their acceptance. The Godwins further allege that United’s construction inspector, also a member of United’s board of directors, had informed them that he would not approve the release of the final draw because defects existed in the construction of their home. We believe that these allegations are sufficient to allege a breach of the construction loan agreement. We vacate the order of dismissal as to this issue and remand.

ORDER VACATED; REMANDED.

ANTOON, J., concurs. DAUKSCH, J., dissents, with opinion.

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Bluebook (online)

688 So. 2d 373, 1997 Fla. App. LEXIS 229, 1997 WL 24762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/godwin-v-united-southern-bank-fladistctapp-1997.