## Facts

- A purchaser entered a contract to buy a tract of land from the seller; closing had not yet occurred.
- During the executory period, the seller arranged for removal and sale of fill from the property to a third party for $240,000.
- The fill removal reduced the property’s value and affected usable acreage.
- The purchaser sued, seeking damages equal to the entire $240,000 received by the seller.
- The trial court found the purchaser was damaged but awarded approximately $122,067, calculated by assigning a per-acre portion of the contract price to 25 acres found to be lost or diminished.
- The purchaser appealed the trial court’s measure of damages.

## Issues

1. When a seller, after executing a land sale contract but before closing, improperly removes and sells valuable fill from the property, is the purchaser entitled to recover the seller’s full proceeds from that sale or only a pro-rata portion of the purchase price tied to affected acreage?

## Decision

- The appellate court reversed the trial court’s damages award to the extent it limited recovery to a pro-rata acreage calculation.
- The court held the purchaser was entitled to the full $240,000 the seller received from selling the fill.
- The court directed entry of judgment awarding the purchaser $240,000.

## Legal Principles

- A seller under an executory contract for sale of land may not, before closing, extract and sell a valuable component of the realty in a manner inconsistent with the purchaser’s contractual entitlement to receive the property as contracted.
- When the seller’s improper pre-closing sale yields a definite monetary gain, damages may be measured by the seller’s full proceeds from the diversion, rather than by a proportional allocation of the contract price based on acreage affected.
- A pro-rata acreage-based valuation may be rejected where it would leave the seller retaining the difference between the market value realized from the extracted material and the smaller contract-based allocation, effectively allowing the seller to profit from the wrongful act.

## Conclusion

The court required the seller to remit the entire $240,000 gained from the pre-closing sale of fill, holding that the purchaser’s remedy was not limited to an acreage-based share of the contract price when the seller’s improper conduct produced a specific, quantifiable gain from the contracted property.


May v. Muroff, 483 So. 2d 772 (Fla. Dist. Ct. App. 4th Dist. 1986)