Bush v. Ayer

• Decision Date: 03 March 1999
• Docket Number: No. 97-4376.,97-4376.
• Citation: 728 So.2d 799
• Parties: Melvin BUSH, Appellant, v. Robert M. AYER, Audree A. Ayer, and Irene M. Malkus, Appellees.
• Court: Florida District Court of Appeals

728 So.2d 799

Melvin BUSH, Appellant, v. Robert M. AYER, Audree A. Ayer, and Irene M. Malkus, Appellees.

No. 97-4376.

District Court of Appeal of Florida, Fourth District.

March 3, 1999.

Rehearing Denied April 12, 1999.

Julie K. Oldehoff of Law Offices of Grazi & Gianino, Stuart, for appellant.

James A. Freese, Stuart, for Appellees-Robert M. Ayer, and Audree A. Ayer.

OWEN, WILLIAM C., Jr., Senior Judge.

The vendee under a putative contract for sale of a vacant lot sued the vendors for breach of contract, specific performance, and fraud after they refused to close the sale. The court denied relief, finding that the contract had not been accepted by the vendee in the manner which vendors, as offerors, had specified, and that vendors had not waived strict compliance. We conclude, on undisputed facts, that the vendors, by their conduct, had waived strict compliance as a matter of law and, therefore, it was error to find there was no contract.

Our discussion is necessarily fact intensive. Appellant Bush wanted to purchase vacant property (Lots 12 and 13) adjacent to property he owned in Port St. Lucie. A realtor informed him Lot 12 was owned by Audree Ayer and Irene Malkus (whom he later learned was the mother of Audree) and Lot 13 was owned by Robert Ayer and Audree Ayer, appellees, all of whom lived in Ohio. After Bush called Mrs. Malkus and discussed with her a possible sale of the two lots, he told his attorney, Mr. Grazi, that the parties had reached an agreement. At Bush's instruction, Grazi prepared and mailed to Malkus two unsigned contracts, one for each lot, for the agreed price.

A few days thereafter, Mr. Freese, an attorney representing the appellees, sent Grazi a letter dated May 7, 1996 (the "cover letter") in which he stated that appellees had agreed to sell the lots, provided Bush paid all closing costs. Enclosed with the letter was a facsimile copy of the contract which had been prepared by Grazi on Lot 13, but now with the appellees' signatures and their handwritten modifications relieving them from payment of any closing costs. In the cover letter, Freese also stated:

Enclosed, please find a copy of the counter-offer to sell Lot 13, signed by Mr. Robert M. Ayer and Mrs. Audree S. Ayer. I believe the other contract has the identical changes and has been signed by Mrs. Irene S. Malkus and Mrs. Audree Ayer.¹ I do not have a copy yet, because there was a problem in the fax transmission, but I am expecting the original contracts in the mail and will forward copies to you a.s.a.p. Please forward these counter-offers to your client, Mr. Bush, and explain the changes. If he is willing to consider the terms proposed by my clients, then please contact me and I will deliver the original signed contracts to your office for his review and execution.

Once there is a complete bilateral contract for each lot, then we can discuss making preparations for closing.

On the day that Grazi received the cover letter, Bush came to Grazi's office, agreed to the changes proposed by appellees, and signed the facsimile copy of the Lot 13 contract to indicate his acceptance. Without question, the cover letter adequately supports the trial court's finding that (1) the facsimile signed by appellees was intended as a written offer, and (2) the cover letter specified the manner of acceptance to be by Bush executing the original hard copy of the contract if he agreed to the modifications. It is likewise not to be disputed that Bush accepted appellees'"counter-offer," but that his acceptance was not in the manner designated in the offer, i.e., he did not execute the original hard copy.² Because generally, for acceptance of an offer to result in a contract, the acceptance must be made in the manner, at the place, and within the time expressly or impliedly designated in the offer, Strong & Trowbridge Co. v. H. Boars & Co., 60 Fla. 253, 54 So. 92, 94 (1910), the issue for us is whether we can say that on the undisputed facts the appellees by their conduct waived strict compliance.

A waiver may be express or implied, and may be inferred from conduct or acts that warrant the inference that a known right has been relinquished. See Torres v. K-Site 500 Assocs., 632 So.2d 110, 112 (Fla. 3d DCA 1994)

. Although waiver is generally a question of fact as to which an appellate court may not reevaluate evidence and substitute its judgment for that of the trial court, Brown v. Powell, 531 So.2d 731, 735 (Fla. 4th DCA 1988), an appellate court may properly consider whether the trial court's findings are supported by competent evidence. Puritz v. Rosen, 442 So.2d 278, 280 (Fla. 4th DCA 1983). Further, a finding which rests on conclusions drawn from undisputed evidence, rather than on conflicts in the evidence, does not carry with it the same conclusiveness as a finding resting on probative disputed facts, but is rather in the nature of a legal conclusion. See Holland v. Gross, 89 So.2d 255 (Fla.1956); Oceanic Int'l Corp. v. Lantana Boatyard, 402 So.2d 507 (Fla. 4th DCA 1981). We are not bound by the trial court's legal conclusions where those conclusions conflict with established law. In Re Estate of Donner, 364 So.2d 742 (Fla. 3d DCA 1978). Thus, we examine the appellees' conduct after Bush signed the facsimile copy of the Lot 13 "counter-offer."

The same day that Bush signed the facsimile copy, Grazi informed Freese that Bush had expressed his agreement to the changes made by appellees and had signed and accepted the contract, and that he (Grazi) was taking the contract to a title company to have closing documents prepared. Mr. Freese voiced no protest that there was not, at that point in time, a contract between the parties, nor did he suggest that there could be no contract until he had...