                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT

                                                                   FILED
                                                          U.S. COURT OF APPEALS
                               No. 05-15806                 ELEVENTH CIRCUIT
                                                                JUNE 28, 2006
                           Non-Argument Calendar
                                                             THOMAS K. KAHN
                                                                  CLERK

                    D. C. Docket No. 04-14244-CV-DMM

ROBERT J. DARRETTA,
MARYELLEN DARRETA,

                                                 Plaintiffs
                                                 Counter-Defendants
                                                 Appellees,

                                   versus

WINDSOR PROPERTIES, a Florida general partnership,
TORWEST, INC., a Florida corporation as general partner
of Windsor Properties,

                                                 Defendants
                                                 Counter-Claimants
                                                 Appellants.



                 Appeal from the United States District Court
                     for the Southern District of Florida


                               (June 28, 2006)
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:

      Defendants-Appellants Windsor Properties (“Windsor”) and Torwest, Inc.

(“Torwest”) appeal an adverse judgment in favor of Robert and Maryellen Daretta

(“the Darrettas”), awarding monetary damages incidental to specific performance.

The Darettas filed this suit against Windsor and Torwest, the developer of the

residential community where the Darettas purchased two lots, seeking specific

performance on approval of their architectural plans for their home, appointment

of a special master to oversee the plan approval and construction process, and

damages for breach of contract. Windsor and Torwest counterclaimed against the

Darettas seeking specific performance on the forfeiture and repurchase of the

Darettas’s property. Following a bench trial, the district court denied both parties’

requests for specific performance, awarded damages to the Darettas in the amount

of $755,058.00, and ordered the parties to mediate the ongoing architectural

disputes with an appointed special master. The district court then entered

judgment pursuant to Fed. R. Civ. P. 54(b) on the monetary damages award.

      “We review conclusions of law de novo but do not disturb findings of fact

unless they are clearly erroneous.” Godfrey v. BellSouth Telecomms., Inc., 89 F.3d

755, 757 (11th Cir. 1996) (citations omitted). “Equitable remedies will not be

                                          2
disturbed unless the [d]istrict [c]ourt abused its discretion or made an error of law,

or unless the findings of fact are not supported by the evidence.” Id. (citation

omitted).

      After careful review, we find that the district court abused its discretion in

awarding monetary damages. As the district court properly noted in its order

awarding damages, a court may award damages incident to a decree of specific

performance in order to adjust the equities between the parties. See Kissman v.

Panizzi, 891 So.2d 1147, 1150-51 (Fla. Dist. Ct. App. 2005) (“[D]amages awarded

incident to a decree of specific performance . . . are a way of compensation to

adjust the equities between the parties to place them in a position that they would

have occupied had the contract been timely performed.”) (citation omitted). Here,

the district court awarded damages to the Darettas, “in order to balance the

equities,” although it had denied both parties’ requests for specific performance.

The award of damages, thus, was not incident to any specific performance1 and

was in error.

      Accordingly, we reverse the district court’s award of monetary damages and

remand this case for further proceedings consistent with this opinion.




      1
          The parties do not argue that the damages were awarded as breach of contract damages.

                                                3
       REVERSED and REMANDED.2




       2
        Our resolution is of course without prejudice to an award of damages on remand pursuant
to the Darettas’ breach of contract claim, or pursuant to a grant of specific performance (e.g.,
assuming specific performance of the entirety of the architectural plans is not appropriate,
nevertheless, specific performance of some part thereof might be, or some other appropriate specific
performance).

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