Purdy v. Brose

PER CURIAM. This is an appeal by the counter-defendant Vicki L. Purdy from an adverse final judgment, plus an award of attorney’s fees and costs, entered below in favor of the counterclaimant, contractor Richard Brose d/b/a Broco Marketing, Inc., in an action for breach of a construction contract. We affirm the final judgment under review, together with the award of attorney’s fees and costs, with one modification. The trial court found that counter-defendant Purdy had breached the contract between the parties and assessed damages in favor of counterclaimant Brose in the amount of $10,400.00. Purdy does not contest these findings, but points out that Brose has retained a down payment in the amount of $17,473.75, made by Purdy pursuant to the contract, and, consequently, Brose has been unjustly enriched as there is no contractual provision for liquidated damages or for non-refundability of the down payment. We entirely agree. We, therefore, affirm the $10,400.00 final judgment under review, but modify same so as to require that it be satisfied entirely out of Purdy’s $17,473.75 down payment and that the balance of said down payment —$7,073.75—be returned by Brose to Purdy. We also affirm the award of attorney’s fees and costs in favor of Brose because Brose was, and still remains, the prevailing party in this action, and therefore was entitled to such fees and costs under the contract between the parties. See Kendall East Estates v. Banks, 386 So.2d 1245, 1247 (Fla. 3d DCA 1980); Richmond v. Lumb, 339 So.2d 1147, 1148 (Fla. [1042] 3d DCA 1976); Carol Management Co. v. Baring Indus., 257 So.2d 270, 272 (Fla. 3d DCA 1972). Affirmed as modified, and remanded with directions to so modify the final judgment.