Schuppener v. Bruno

395 So. 2d 1234, 1981 Fla. App. LEXIS 19003

Opinion

HERSEY,

* Judge.

These consolidated appeals are brought by the appellants as sellers of certain real property of which appellees were the buyers. Summary final judgment granting specific performance of the purchase and sale agreement to appellee-buyers is the subject of Case Number 78-2652. A final judgment awarding damages to appellees for breach of that contract is the subject of Appeal Number 79-909.

Subsequent to entry of the summary final judgment and filing of the notice of appeal the parties closed the transaction pursuant to court order, exchanging funds and a mortgage for a warranty deed. Ap-pellees are in possession and have renovated the premises. Appellants have accepted the purchase price and recorded a mortgage. Under these circumstances the issues in appeal number 78-2652 appear to us to be moot. In any event, appellants have knowingly and voluntarily accepted benefits under the summary final judgment and they are therefore estopped to seek reversal of that judgment. Rayle v. Merrill, 141 So.2d 288 (Fla. 1st DCA 1962). We dismiss that appeal.

The award of damages was calculated to compensate appellees for loss of rentals and miscellaneous expenses incurred by reason of appellants’ failure to exercise due diligence to remove a title defect so that a timely closing might be effectuated. There is sufficient evidence in the record to support that award.

Appellee cross-appeals the amount of the award. We conclude that no abuse of discretion has been demonstrated.

No reversible error appearing in the record, we affirm the final judgment.

Appeal No. 78-2652: DISMISSED.

Appeal No. 79-909: AFFIRMED.

DOWNEY and HURLEY, JJ, concur.

Did not participate in oral argument.