
    HALLMARK BUILDERS, INC. v LEE
    Case No. AP87-5 (County Court Case No. SO86-6289)
    Ninth Judicial Circuit, Orange County
    March 8, 1989
    APPEARANCES OF COUNSEL
    Melissa C. Arnold, for appellant.
    Weems B. Lee, pro se.
   OPINION OF THE COURT

EMERSON R. THOMPSON, JR., Circuit Judge.

Appellant seeks to set aside the Final Judgment of the trial court which ruled that the Appellant reimburse the Appellee for construction loan interest, court costs and attorney fees.

This Court sits as an appellate court pursuant to Rule 9.030(c)(1), Fla. R. App. P. This court has jurisdiction.

The Appellant has raised two points on appeal:

I. THE TRIAL COURT ERRONEOUSLY HELD THAT THE

APPELLANT HAD FAILED TO SPECIFICALLY PLEAD UNJUST ENRICHMENT, THOUGH THE CASE WAS GOVERNED BY THE SMALL CLAIM RULES.

II. THE TRIAL COURT ERRED IN ITS FINDING THAT THE BUILDER WAS NOT ENTITLED TO A SETOFF.

FACTS

The Appellant and Appellee entered into a contract for the purchase of a house to be constructed by the Appellant. Using a hand-written provision, the Appellant modified the contract so that the Appellant would be responsible for all construction loan interest and closing costs. The Appellee obtained a construction loan which automatically converted into a permanent loan upon the expiration of the pre-set six month construction term. The Appellee closed on the home unit prior to the start of its construction. The unit was completed before the six month construction period had expired and the Appellee moved into the house. The Appellee received and subsequently paid three notices of construction loan interest to prevent foreclosure. The Appellant refused to pay the interest on the basis that since the unit was completed early and the Appellee occupied the unit prior to the loan rollover date, either rent or construction loan interest should be paid by the Appellee.

The trial court entered a judgment for the Appellee consisting of Thirteen Hundred and 74/100 Dollars ($1300.74) for reimbursement of construction loan interest and Sixty-Seven and 50/100 ($67.50) in court costs. An order was subsequently entered awarding attorney fees and costs for the Appellee in the amount of Seven Hundred Forty and 00/ 100 Dollars ($740.00). The Appellant filed a timely Notice of Appeal.

APPELLANT’S POINTS ON APPEAL

In the first point on appeal, the Appellant contends that unjust enrichment does not have to be specifically pled in a case governed by the Small Claims Rules. Florida Small Claims Rule 7.090 states that written pretrial motions and defensive pleadings are not necessary unless required by order of court. Unjust enrichment is not a defensive pleading and should have been pled in a counterclaim, which is required to be in writing. See Small Claims Rule (SCR) 7.100. Consequently, this argument has no merit.

The second point on appeal concerns the Appellant’s entitlement to setoff The Appellant drafted the contract, which the trial court found to be unambiguous. Consequently, the trial court held that the Appellant was obligated to pay all construction loan interest. Additionally, the Appellee was not contractually required to pay rent. There were no respective debts between the parties, thus, setoff can not be used to offset any money for rent and as such the Appellant is not entitled to setoff. See SCR 7.100. There was no error committed by the trial court.

It is the Judgment of the Court that the case be AFFIRMED and the Final Judgment entered by COUNTY COURT JUDGE JAMES C. HAUSER be implemented.

AFFIRMED.  