Muñiz v. Crystal Lake Project, LLC, 3D05-1997.

• Decision Date: 25 October 2006
• Docket Number: No. 3D05-1997.,3D05-1997.
• Parties: Dania MUÑIZ and Arturo A. Chao, Appellants, v. CRYSTAL LAKE PROJECT, LLC, Appellee.
• Court: Florida District Court of Appeals

947 So.2d 464

Dania MUÑIZ and Arturo A. Chao, Appellants, v. CRYSTAL LAKE PROJECT, LLC, Appellee.

No. 3D05-1997.

District Court of Appeal of Florida, Third District.

October 25, 2006.

Arnaldo Velez, Coral Gables, for appellants.

G. Richard Strafer, for appellee.

Before COPE, C.J., and FLETCHER and ROTHENBERG, JJ.

ROTHENBERG, Judge.

The plaintiffs, Dania Muñiz and Arturo A. Chao ("Purchasers"), appeal a final judgment denying their claim for specific performance of a contract to convey land entered into with the defendant, Crystal Lake Project, LLC ("Seller"). The Seller cross-appeals the denial of its counterclaim against the Purchasers for breach of contract. We reverse in part, affirm in part, and remand for further proceedings.

On February 1, 2003, the Purchasers visited the Seller's sales office and were attended by one of the Seller's sales representatives Benjamin Cimino ("Mr. Cimino"). Mr. Cimino gave the Purchasers brochures depicting various model homes for sale by the Seller. The Purchasers decided to purchase one of the models in the brochures, the "Vizcaya" model, and entered into negotiations with Mr. Cimino regarding the items to be included in the structure to be built by the Seller. Mr. Cimino prepared a purchase and sale agreement for the Vizcaya model with a total purchase price of $269,990.00 ("Agreement"). Mr. Cimino made two copies of the unexecuted Agreement, added to each of the copies hand-written notations indicating additional options to be included in the structure, and gave both copies to the Purchasers for their respective signatures.

The Purchasers executed both copies of the Agreement and simultaneously made a separate list of additional items they believed were to be included on the subject property. The Purchasers gave this additional option list to Mr. Cimino. This list, however, was never added to nor incorporated by reference into either copy of the Agreement. After executing both copies of the Agreement, the Purchasers retained one copy and Mr. Cimino retained the other copy for transmittal to the Seller for signature by the Seller's authorized officer. The Seller's authorized officer ultimately executed the second copy. Although the Purchasers on numerous occasions requested a fully executed copy of the Agreement, it was not provided to them.¹

The copy of the Agreement retained by the Purchasers and not signed by the Seller's authorized officer, includes hand-written notations to include the following options in the structure: crown molding; washer and dryer; tub enclosure on the second bathroom upper level; and ceramic tile in all areas except the bedroom. The copy of the Agreement executed by the Seller's authorized officer contained all of the hand-written notations except for the notation "ceramic tile all area but bedroom."

Construction of the structure on the property commenced soon thereafter. During late 2003 to early 2004, the Purchasers noticed that the structure was not being built according to their expectations and pursuant to the hand-written notations on the Agreement or the additional option list. The Purchasers consequently went to the Miami-Dade County Building and Zoning Department ("County") to review the plans that had been approved for the subject property. Realizing that the construction of the structure was not in accordance with the building plans nor with their expectations under the Agreement, the Purchasers reported the Seller to the County. A code compliance officer for the County visited the construction site and ordered corrections to be made to the plans. The Seller thereby made corrections to the building plans.

On February 9, 2004, more than a year after execution of the Agreement and after commencement of construction on the subject structure, the Seller's attorney, Gilbert Contreras ("Mr. Contreras"), wrote the Purchasers a letter stating that they were in default of the Agreement due to the Purchasers' improper and unauthorized entry onto the construction premises. Along with the termination letter, Mr. Contreras sent the Purchasers a check in the amount of their deposit money. The Purchasers have never cashed this check.

On March 12, 2004, the Purchasers filed a complaint for specific performance demanding that the Seller convey the property to them as per the terms of the Agreement and concurrently filed a Notice of Lis Pendens.

During the pendency of the litigation, the Seller received a certificate of occupancy for the subject property. Although the Seller had informed the Purchasers of its intent to terminate the Agreement on February 9, 2004, the Seller nonetheless, on June 18, 2004, sent notice to the Purchasers that a certificate of occupancy had been issued on the subject property, and offered a "walk-through" inspection for June 25, 2004 with closing to follow.

The Purchasers attended the "walk-through" inspection, prepared extensive notes on the items they felt were missing from the structure, and proceeded to the scheduled closing. The Purchasers attended the closing with cash in hand, the required financing in place, and indicated their willingness to close on the subject property despite the notations on the "walk-through punch list." The Seller, however, notified the Purchasers for the first time, that a necessary condition to proceeding with the closing was that the Purchasers dismiss the pending lawsuit with prejudice and dissolve the lis pendens. Although the Purchasers agreed to dismiss the lawsuit without prejudice and dissolve the lis pendens, the Seller refused to close pursuant to its alleged inability to convey marketable title unless the lawsuit was dismissed with prejudice. The Purchasers refused to dismiss the lawsuit with prejudice and consequently the sale transaction was not consummated.

Ultimately, the lawsuit was tried non-jury, and the trial court entered a final judgment denying the Purchasers' request for specific performance finding (1) that at the time the action was commenced, the structure was only partially completed and the sale of an incompletely constructed home was not what the parties contracted for; and (2) that because the terms of the Agreement were not clear, definite, certain and complete in all of their essential terms, specific performance of the Agreement was not warranted. The trial court further found that the lis pendens statutorily expired on March 12, 2005 per section 48.23, Florida Statutes.² As to the Seller's counterclaim for breach of contract, the trial court denied the claim, specifying that the Seller could not invoke a benefit under a contract that it had declared terminated and cancelled. The trial court reserved jurisdiction to award attorneys' fees and costs upon proper notice and motion.

The Purchasers appeal the denial of their claim for specific performance, arguing that the trial court abused its discretion in refusing to grant specific performance as the structure was substantially built at the time the lawsuit was commenced and completed by the time of trial. The Purchasers further argue that the trial court abused its discretion in denying specific performance of a contract that was clear, definite, certain, and complete in all of its essential terms. We agree with the Purchasers that the trial court abused its discretion in denying their claim for specific performance.

The decision whether to grant or withhold a judgment for specific performance is a matter within the sound discretion of the trial court which will not be disturbed on appeal unless clearly erroneous. Henderson Dev. Co. v. Gerrits, 340 So.2d 1205, 1206 (Fla. 3d DCA 1976). The exercise of this discretion by the trial court, however, must be legally sound and not arbitrary. Humphrys v. Jarrell, 104 So.2d 404, 410 (Fla. 2d DCA 1958). "[T]he right to exercise this judicial discretion does not extend to the power or authority to contravene the legal requirements which must exist to give a litigant grounds upon which he may invoke the remedy." Castigliano v. O'Connor, 911 So.2d 145, 148 (Fla. 3d DCA 2005)(quoting Howard Cole & Co., Inc. v. Williams, 157 Fla. 851, 27 So.2d 352, 356 (1946)). Thus, "if it appears on appeal that the principles of equity justify specific performance, and no provision of law would be violated by enforcing specific performance, a decree refusing such relief may be reversed." Witham v. Shepard, 84 Fla. 75, 92 So. 685, 685 (1922). Equity sometimes "requires us to order that something be done which is just and equitable. Put differently, it is the maxim `equity will do what ought to be done.'" Demorizi v. Demorizi, 851 So.2d 243, 246 (Fla. 3d DCA 2003).

The interpretation of a contract involves a pure question of law for which this court applies a de novo standard of review. Kissman v. Panizzi, 891 So.2d 1147, 1149 (Fla. 4th DCA 2005). In order for a court to grant specific performance, the parties must have entered into an agreement that is definite, certain, and complete in all of its essential terms. Bay Club, Inc. v. Brickell Bay Club, Inc., 293 So.2d 137, 138 (Fla. 3d DCA 1974); see also 330 Michigan Ave., Inc. v. Cambridge Hotel, Inc., 183 So.2d 725, 726-27 (Fla. 3d DCA 1966)("Specific performance will not be enforced where the contract is not definite and certain as to essential terms and provisions and is incapable of being made so by the aid of legal presumption or evidence of established customs.").

In the instant case, the trial court found that the testimony and evidence failed to meet this standard in light of the conflicting versions of the Agreement and the discrepancies relating to the Purchasers' additional option list. We disagree.

We note that the trial court itself granted the Purchasers' ore tenus motion to adopt the fully executed copy of the Agreement as the actual purchase and sale agreement between the parties. Thus, there are no conflicting versions of the parties' agreement. A review of the fully executed Agreement reflects...