## Facts

- Lester entered into a written contract with Sun Bank of Miami to purchase real property.
- The contract required Lester to pay a deposit on **May 1, 1979**.
- The contract contained a **time-is-of-the-essence** provision.
- Lester did not pay the required deposit by May 1, 1979.
- On **May 3, 1979**, Lester attempted to deliver the deposit to Sun Bank.
- Sun Bank refused to accept the late deposit and treated the contract as terminated based on nonpayment by the stated deadline.
- Lester sued Sun Bank seeking **specific performance** of the purchase contract.
- After a nonjury proceeding, the trial court entered a final judgment for Lester that:
  - granted specific performance, and
  - awarded Lester approximately **$6,500** in attorney’s fees.
- Sun Bank appealed the final judgment.
- Lester cross-appealed, arguing the attorney’s-fee award was inadequate.

## Issues

1. Whether a buyer who fails to timely pay a contractually required deposit under a time-is-of-the-essence provision may still obtain specific performance after tendering the deposit two days late.
2. Whether the seller may refuse a late tender and treat the contract as terminated when the deposit deadline is expressly made essential.
3. Whether the trial court’s attorney’s-fee award to the buyer can stand after appellate review of the merits, and whether the buyer’s cross-appeal seeking additional fees remains viable.

## Decision

- The Third District Court of Appeal **reversed** the final judgment granting specific performance to Lester.
- The court concluded that, given the contract’s time-is-of-the-essence language, Lester’s failure to pay the deposit by the required date barred him from compelling performance after the fact through a late tender.
- The court also **reversed** the attorney’s-fee award tied to Lester’s success in the trial court, and the cross-appeal seeking additional fees did not provide a basis for relief after reversal on the merits.

## Legal Principles

- When a real-estate contract states that **time is of the essence**, timely performance of the specified obligation (such as payment of a deposit by a date certain) is treated as a material contractual requirement.
- A party seeking **specific performance** must show that it performed, or was ready, willing, and able to perform, in the manner and within the time the contract requires when time is made essential.
- A seller may reject a **late tender** and treat the agreement as ended when the buyer misses an essential deadline and the seller has not waived the deadline or otherwise lost the right to enforce it.
- Equity does not generally provide specific performance to excuse noncompliance with an expressly essential time term where the contract makes punctual performance a condition of enforcement.
- An award of attorney’s fees that depends on a party’s status as the prevailing party ordinarily falls with reversal of the merits judgment that created that status.

## Conclusion

In *Sun Bank of Miami v. Lester*, the Third DCA reversed a judgment ordering specific performance and awarding attorney’s fees to a buyer who tendered a required deposit two days late, holding that the contract’s time-is-of-the-essence provision made timely payment a material requirement that the buyer failed to meet, permitting the seller to refuse the late tender and treat the contract as terminated.


Sun Bank of Miami v. Lester, 404 So.2d 141 (1981)