DiMase v. Aquamar 176, Inc.

• Court: Florida District Court of Appeals
• Writing for the Court: PER CURIAM.
• Citation: DiMase v. Aquamar 176, Inc., 835 So.2d 1150 (Fla. App. 2002)
• Decision Date: 29 May 2002
• Docket Number: No. 3D01-915.,3D01-915.
• Parties: Julian DiMASE and Gaetano DiMase, Appellants, v. AQUAMAR 176, INC., and Chicago Title Insurance Company, Appellees.

835 So.2d 1150

Julian DiMASE and Gaetano DiMase, Appellants, v. AQUAMAR 176, INC., and Chicago Title Insurance Company, Appellees.

No. 3D01-915.

District Court of Appeal of Florida, Third District.

May 29, 2002.

Armstrong & Mejer, P.A., and Alvaro L. Mejer, for appellants.

Frankel & Lieberman, P.A., and Robert P. Frankel, for appellees.

Before JORGENSON, GREEN, and RAMIREZ, JJ.

PER CURIAM.

Prospective buyers appeal from an order of final summary judgment in an action brought against the sellers to recover deposits for the purchase of two condominium units. We affirm. Julian and Gaetano DiMase signed purchase agreements for two condominium units which were under construction. The units were both located at the same complex. The agreements specified that floor coverings were not included with the sale of the units. The buyers also signed proposed addenda which specified that the seller would install at its own cost marble flooring throughout the units, "marble design and color to be specified by buyer." The addenda were not signed by the seller/developer. Each buyer tendered ten percent deposits. Chicago Title is the deposit escrow holder.

After signing the documents and tendering the deposits on May 1, 1998, the buyers returned to their homes in Venezuela. Although the seller approved the purchase price, it rejected the addenda and substituted the following: "Seller to provide marble floors of the same quality and value as shown in sales model unit # 1208." When the seller's proposed addenda were telefaxed to Venezuela, the buyers did not sign them. Instead, by letter dated July 17, the buyers rejected the seller's proposed addenda and declined to pay the next deposits due. When the seller refused to return the deposits, the buyers sued to recover the funds held in escrow. The seller filed an answer, affirmative defense and counterclaim for a declaratory judgment to have the buyers declared in default. Following entry of summary judgment for the seller, the buyers appeal.

We find no merit in the buyers' argument that the Purchase Agreements were actually offers, and that when the parties could not agree on the flooring, the buyers each rejected those offers. "In construing contracts, the intention of the parties governs, and such intention will be determined from the language used when it is unambiguous." Robbinson v. Central Properties, Inc., 468 So.2d 986, 988 (Fla. 1985).

The terms of the Purchase Agreement clearly and unambiguously express the parties' intent to be bound by its terms. Each Purchase Agreement states that "buyer agrees to buy and seller agrees to sell ..." and that "this Agreement is the entire contract for sale and purchase of the units and once it is signed, it can only be amended by a written instrument signed by the party against whom enforcement is sought which specifically states that this is amending this Agreement." (emphasis added). It is undisputed that both parties signed the Purchase Agreement. Further evidencing the parties' intent to enter into a binding contract upon execution is the severability clause of the agreement. The severability clause provides, in pertinent part, that any parts which are unenforceable will be modified or nullified "in order that the mutual paramount goal (that this Agreement is to be enforced to the maximum extent possible strictly in accordance with its terms) can be achieved." In addition, the Purchase Agreement provides a specific period, fifteen days after its execution, during which the buyers could have avoided the Purchase Agreement by providing the seller with written notice. These are the terms to which the buyers agreed, as evidenced by their signatures on the Purchase Agreements. See Acceleration Nat'l Serv. Corp. v. Brickell Fin. Servs. Motor Club, Inc., 541 So.2d 738, 739 (Fla. 3d DCA 1989) (holding that the best evidence of the parties' intent is the document sought to be enforced); Robbinson, 468 So.2d at 988. The Purchase Agreement was objectively a final expression of the buyers' intent to buy, and the seller's intent to sell, the condominium unit. See Gendzier v. Bielecki, 97 So.2d 604, 608 (Fla.1957). In Robbie v. City of Miami, 469 So.2d 1384, 1385 (Fla.1985), the Florida Supreme Court wrote:

"We have consistently held that an objective test is used to determine whether a contract is enforceable.... `The making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs—not on the parties having meant the same thing but on their having said the same thing.' ... In addition, parties to a contract do not have to deal with every contingency in order to have an enforceable contract."

(quoting Blackhawk Heating & Plumbing Co. v. Data Lease Fin. Corp., 302 So.2d 404, 407 (Fla.1974) and Gendzier v. Bielecki, 97 So.2d 604, 608 (Fla.1957)). Accordingly, we hold that the Purchase Agreement was a valid contract for the sale and purchase of a condominium.

Likewise, we reject the buyers' argument that no contract was formed because there was no meeting of the minds. A "meeting of the minds" defense succeeds only where the parties have failed to agree on an essential term of the contract:

While a `meeting of the minds' may not be necessary as to every term for a contract to be formed, mutual assent is certainly necessary as to an essential term such as the financing terms of this real estate transaction.... Because an essential term of the contract which cannot be supplied by implication was not assented to, no contract was formed and none of its provisions became binding.

David v. Richman, 568 So.2d 922, 924 (Fla. 1990) (citations omitted); see also Bowen v. Larry Gross Const., Inc., 781 So.2d 464, 466 (Fla. 5th DCA 2001) ("Even though the details are not definitely fixed, an agreement may be binding if the parties agree on the essential terms and seriously understand and intend the agreement to be binding on them. A subsequent difference as to the construction of the contract does not affect the validity of the contract or indicate the minds of the parties did not meet with respect thereto."); see also Robbie v. City of Miami, 469 So.2d 1384, 1385 (Fla.1985).

The buyers have not even attempted to explain how marble flooring was an "essential term," without which the contract could never be formed. See, e.g., Fox v. Sails at Laguna Club Dev. Corp., 403 So.2d 456 (Fla. 3d DCA 1981). The definition of "essential term" will "vary widely according to the nature and complexity of each transaction and will be evaluated on a case-by-case basis."Socarras v. Claughton Hotels, Inc., 374 So.2d 1057, 1060 (Fla. 3d DCA 1979); see also Giovo v. McDonald, 791 So.2d 38, 40 (Fla. 2d DCA 2001) ("Certainly, what is an `essential term' of a contract differs according to the circumstances."). Even if marble flooring could be deemed an essential term, it was, in fact, referenced in the Purchase Agreement, as flooring was specifically excluded. See Giovo, 791 So.2d at 39 (holding that essential terms include those specified in the "offer ... [and] an acceptance is effective to create a contract only if it is absolute and unconditional, and identical with the terms of the offer"). The buyers accepted the terms of the offer, which were memorialized in the clear and unambiguous Purchase Agreement. The sellers never changed, altered, modified, or deviated from the terms of the offer, which specifically provided that flooring is not included absent some form of addendum signed by both parties. See Press v. Jordan, 670 So.2d 1016 (Fla. 3d DCA 1996) (holding that no meeting of the minds, and hence no contract, was formed when condominium sellers unilaterally modified contract by altering interest rate term and purchasers did not consent to modification). The parties' failure to agree on the flooring addenda does not affect the enforceability of the Purchase Agreement. See Mercedes Homes, Inc. v. Osborne, 687 So.2d 840 (Fla. 2d DCA 1996) (holding that all the terms of an original contract that are not modified, substituted, or amended remain in full force and effect). Because the buyers failed to void the contract within the 15 day contractual period,¹ and the Purchase Agreement provides for liquidated damages in the amount of the deposit, the buyers are not entitled to recovery of the deposits. Accordingly, the judgment is

AFFIRMED.

JORGENSON and GREEN, JJ., concur.

RAMIREZ, J., (dissenting).

I respectfully dissent. The majority opinion will unnecessarily disturb longstanding principles in contract law, and will create uncertainty and confusion in the drafting and execution of real estate agreements.

It is important to bear in mind that this appeal comes to us from an order granting summary judgment. Viewing the evidence in the light most favorable to the appellants, Julian and Gaetano DiMase, the inescapable conclusion is that summary judgment was improvidently granted. Even if we only view the undisputed facts, summary judgment should be reversed.

I. The Undisputed Facts

On May 1, 1998, the DiMases each signed four separate documents, all prepared by the seller, Aquamar 176, Inc., through its sales executive, Rafael Rodriguez. These documents consisted of (1) a "Purchase Agreement," (2) an "Amendment to Purchase Agreement," (3) an "Addendum," and (4) a Receipt for Condominium Documents. The four documents were executed only by the purchasers, the DiMases, who departed for Venezuela after signing.

The sixteen-page Purchase Agreements specified the purchase price for each unit as $634,000 and $628,000, respectively. Paragraph 15, entitled "Certain Items and Materials," provided, in pertinent part, as follows:

Buyer understands and agrees that certain items such as the following ... are not included with the sale of the Unit:... carpets or other floor coverings ... Items such as these will not be included in the Unit unless specifically provided for in a Rider or Schedule to this

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