DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

BRIDGETTE SHAW,

Appellant,

v.

ZARA NEWHAM,

Appellee.

No. 2D22-3300

December 20, 2023

Appeal from the County Court for Pinellas County; Lorraine M. Kelly, 

Judge.

Jeremy D. Bailie and Kyle D. Bass of Weber, Crabb & Wein, P.A., St. 

Petersburg, for Appellant.

Alexander T. Lewis of Lewis & Castagliola, P.A., St. Petersburg, for 

Appellee.

KELLY, Judge.

Bridgette Shaw (the buyer) appeals from the county court's order 

finding that she breached a contract to purchase the assets of a hair 

salon from Zara Newham (the seller) and awarding the seller the entire 

contract price as damages. We reverse on the issue of damages.
2

The seller owned a hair salon in a leased space. The buyer 

contracted with the seller to purchase the "business assets" of the hair 

salon, which included the salon's name, telephone number, website, 

email address, advertising materials, all customer accounts and records, 

documents related to suppliers and vendors, and the furniture, fixtures, 

and equipment referenced in "Schedule A."1 The contract terms required 

the seller to maintain the business until closing on or before July 1, 

2020, and then to assign the lease to the buyer. The seller also agreed to 

remain on the premises for two weeks after closing to help the business 

transition. The buyer paid a $3,000 deposit that was to be applied 

toward the $10,000 purchase price.2 The contract allowed the buyer 

twenty days to conduct her due diligence beginning on June 2, 2020. 

During that twenty-day period, the buyer could cancel the contract and 

have her deposit returned if the business was "not to the Buyer's sole, 

complete and personal satisfaction." The closing was originally set for 

June 30, 2020, but it was postponed twice to accommodate the buyer's 

move from out of state. It was ultimately scheduled for July 15, 2020. 

Because the closing was delayed, the parties decided that the buyer 

should take over the lease obligation at the end of June. The seller 

terminated her lease, and the buyer obtained a new lease directly from 

the landlord, commencing July 1. At trial, the buyer claimed it was the 

seller's idea to execute this plan because the seller did not want to pay 

rent for the month of July. In contrast, the seller claimed that it was a 

mutual decision among the parties and the landlord. 

1 Although the contract states that Schedule A was attached to the 

contract, such attachment does not appear in the record.

2 The contract provides that the total purchase price was $18,000, 

$8,000 of which was the broker's fee.
3

Four days before the closing date, and outside the due diligence 

period, the buyer gave notice that she was not going through with the 

purchase. She claimed that the seller refused to give her any of the 

business's financial information for her due diligence investigation and 

had threatened not to give up her client list or the business's phone 

number after the sale. The seller left the premises approximately two 

weeks after being informed of the canceled sale and took all the fixtures 

and furniture with her, leaving the space completely bare. Consequently, 

the buyer filed suit against the seller for, inter alia, unlawful detainer of 

the premises and conversion. The seller counterclaimed, seeking 

damages for the buyer's breach of contract for failing to close on the 

contract. 

Following a bench trial, the county court rendered judgment in 

favor of the seller on all claims. The court rejected the buyer's claim for 

unlawful detainer, finding that the contract required the seller to 

maintain the business until closing and permitted her to stay on the 

premises for two weeks afterward to aid in the transition. On the buyer's 

conversion count, the court found that the buyer was not entitled to the 

fixtures because she did not purchase the salon. As to the seller's 

counterclaim for breach of contract, the court found that the buyer 

breached the contract when "she did not show up for the closing and pay 

for the salon." The court determined that the seller was entitled to the 

entire contract price to put her in the position she would have been in 

had the buyer not breached. On this point, the court stated, "I think 

what shapes the Court's view on these things is that as counsel for [the 

seller] accurately argued, [the buyer] basically enjoys the benefit of the 

deal that they had without ever having to pay a single penny." The court 

rendered judgment in favor of the seller for $10,000. 
4

The buyer argues that the county court erred in awarding the seller 

more than the amount pled or permitted by the terms of the contract. 

She points to the provisions in the contract that state, as follows:

11.1 DEFAULT BY BUYER:

11.1.1 If Buyer fails to pay the balance of any cash 

necessary to close this transaction, or if the 

Buyer fails to perform any of the covenants and 

conditions of this Contract, the Seller shall have 

the right to enforce this Contract pursuant to 

the Contract terms.

11.1.2 In the alternative, and at the option of the 

Seller, the Seller may retain all sums paid by 

Buyer as liquidated damages.

The buyer contends that the plain language of the contract 

provides the seller only two options in the event of the buyer's breach: (1) 

sue for specific performance or (2) collect as liquidated damages the 

buyer's $3,000 deposit. Instead, the court awarded to the seller the 

entire purchase price and allowed the seller to keep the salon's trade 

name, phone number, client list, business records, and fixtures. The 

buyer contends that this was error because the contract did not give the 

seller the option of obtaining a money judgment in the event of the 

buyer's breach. 

The seller argues that because the contract allows for the election 

of liquidated damages or money damages, it is unenforceable under 

Lefemine v. Baron, 573 So. 2d 326, 327-28 (Fla. 1991). In Lefemine, the 

supreme court held that the default provision in a contract was not 

enforceable as a liquidated damages clause as a matter of law if there 

was an option to sue for damages or to retain a deposit. 573 So. 2d at 

330. The supreme court explained that the ability of the seller to refuse 

to be limited to the deposit paid by the buyer as a liquidated amount, 
5

and to sue for damages, destroyed the character of the agreement on 

damages and became a penalty. Id. at 328-29. 

In this case, the seller's argument is flawed because, unlike the 

contract in Lefemine, the contract at issue does not provide for a remedy 

to the seller to sue for actual damages. Rather, the seller is only 

contractually permitted to sue for specific performance or to retain the 

buyer's deposit. See Mineo v. Lakeside Vill. of Davie, LLC, 983 So. 2d 20, 

22 (Fla. 4th DCA 2008) (holding that a default clause that allows the 

nondefaulting party to retain the deposit as liquidated damages or sue 

for specific performance is enforceable because the damages have been 

agreed upon in advance; the seller can seek specific performance at a 

purchase price that is certain or accept the buyer's deposit as stipulated 

damages).

The seller also contends that she was entitled to the full contract 

price because the buyer received the benefit of the bargain by obtaining 

the lease, despite reneging on the sale. As the buyer points out, the 

seller's own trial testimony undermines her claim. In response to 

questioning about the whereabouts of the assets described in the 

contract, the seller admitted, "I have everything in my possession." In 

fact, the only item that the seller relinquished was the lease—which she 

willingly terminated prior to the closing date.

We agree with the buyer's contention that the court erred in 

awarding the seller a money judgment for the full contract price. See

Waters v. Key Colony E., Inc., 345 So. 2d 367, 367 (Fla. 3d DCA 1977) ("A 

party to a contract, who agrees to accept a sum as liquidated damages, 

cannot sue for actual damages."). The contract provides that the seller 

either could seek specific performance and require the buyer to pay 

$10,000 for the salon's assets or she could retain the buyer's deposit as 
6

liquidated damages and keep the business's assets. By receiving the full 

contract price in the final judgment, the seller received a windfall; she 

continues to own the salon's trade name and other assets, and she 

received $10,000 in damages—in spite of the fact that she put herself in 

an unfortunate position by relinquishing the lease before selling her 

business. See, e.g., Koplowitz v. Girard, 658 So. 2d 1183, 1184 (Fla. 4th 

DCA 1995) ("A party can neither receive more than it bargained for nor 

should it be put in a better position than it would have been in had the 

contract been properly performed."). In contrast, the buyer received an 

empty space and a judgment requiring her to pay the full contract price, 

a result that was not authorized by the contract.

Accordingly, we affirm the county court's rejection of the buyer's 

claims against the seller without comment. We also affirm the court's 

ruling on the seller's counterclaim that the buyer breached the contract 

by canceling the contract outside the due diligence period. However, 

because the court's judgment awards damages in excess of what the 

contract allows, we reverse the award of $10,000 to the seller and 

remand for entry of a judgment in the amount of $3,000. 

Affirmed in part, reversed in part, and remanded with directions. 

ROTHSTEIN-YOUAKIM and ATKINSON, JJ., Concur.

Opinion subject to revision prior to official publication.