Con-Dev of Vero Beach, Inc. v. Casano

• Decision Date: 23 January 1973
• Docket Number: No. 72--601,CON-DEV,72--601
• Citation: 272 So.2d 203
• Parties: OF VERO BEACH, INC., a Florida corporation, Appellant, v. Francis V. CASANO and Anna M. Casano, his wife, Appellees.
• Court: Florida District Court of Appeals

Page 203

272 So.2d 203

CON-DEV OF VERO BEACH, INC., a Florida corporation, Appellant, v. Francis V. CASANO and Anna M. Casano, his wife, Appellees.

No. 72--601.

District Court of Appeal of Florida, Fourth District.

Jan. 23, 1973.

Luther Taylor and Frank E. Booker, of Ryan, Taylor, Booker & Law, North Palm Beach, for appellant.

Charles R. McKinnon, of Gould, Cooksey, Fennell, Appleby & McKinnon, Vero Beach, for appellees.

WALDEN, Judge.

This appeal challenges an interlocutory order which struck defendant's affirmative defenses in a suit which prayed for specific performance and alternatively for money damages. As reflected, we reverse as concerns certain of them, and otherwise affirm.

From the complaint we notice that the underlying contract is one in which plaintiffs agreed to purchase an apartment in The Citadel, a condominium which defendant was later to build. Inasmuch as the particular condominium was not built, a fact mentioned in the complaint, there is a question in this court's mind as to whether plaintiff as pleaded a proper cause for specific performance.

From the record, it appears that plans to construct The Citadel were abandoned and in its stead a new condominium apartment building, markedly different in layout and scope and more expensive as to unit cost, was constructed, it being called the Village Spires.

With this backdrop, defendant asserted six affirmative defenses, as follows:

(a) Impossibility and abandonment.

(b) Plaintiffs' failure to do equity (unclean hands).

(c) Improper execution of the contract sued on under F.S. 689.01, F.S.A.

(d) Absence of mutuality of obligation or remedy.

(e) Breach of the alleged contract by Plaintiffs' failure to make payment or timely payment under the contract, and that Plaintiffs are not entitled to the remedies they seek, but that such relief is excluded and their remedy limited by the contract they have pleaded and relied on.

(f) Laches and estoppel or waiver.

Except for (f), laches and estoppel or waiver, these defenses were stricken upon plaintiffs' motion, for reasons not apparent. All were erroneously stricken except (c), improper execution of the contract under § 689.01, F.S.1969, F.S.A.

Section 689.01 provides:

'689.01 How real estate conveyed.--No estate or interest of freehold, . . . shall be . . . granted, transferred . . . in any other manner than by instrument in writing, signed in the presence of two subscribing witnesses by the party . . . granting, . . . such estate, . . . Corporations may convey in accordance with the provisions of this section or in accordance with the provisions of §§ 692.01 and 692.02.'

This defense was immaterial and, therefore, properly stricken as Section 689.01 applies to Conveyances, not contracts to convey. Kroner v. Esteves, Fla.App.1971, 245 So.2d 141. Here we are concerned with a purchase agreement, not an actual conveyance.

Contracts for the sale of land fall within the purview of Section 725.01, F.S. 1969, F.S.A.:

'725.01 Promise to pay another's debt, etc.--No action shall be brought . . . upon any contract for the sale of lands, . . . unless the Agreement or promise upon which such action shall be brought, or some note or memorandum thereof Shall be in writing and signed by the party to be charged therewith or by some other person by him thereunto lawfully authorized.' (Emphasis supplied.)

Section 725.01 does not require witnesses and by case law contracts to convey property need not be witnessed if the property is not 1) homestead, 2) separate property of a married woman or 3) relinquishment of dower. Zimmerman v. Diedrich, Fla.1957, 97 So.2d 120. If one of these three is not concerned, it is unnecessary to have two witnesses to the contract to insure specific performance. Zimmerman v. Diedrich, supra. This is also true in damage suits for breach of contract to convey property. Radabaugh v. Ware, Fla.App.1970, 241 So.2d 738; see Kroner v. Esteves, supra.

Since the property in question did not fall within the purview of the three classes, defendant's affirmative defense that the contract was not witnessed as required by Section 689.01 was immaterial to both the damages claim and specific performance claim and, therefore, was properly stricken.

Under F.R.C.P. 1.110(d), 30 F.S.A., a party must affirmatively plead certain enumerated defenses and 'any other matter constituting an avoidance or affirmative...