Fernandez v. Homestar at Miller Cove, Inc.

• Decision Date: 28 June 2006
• Docket Number: No. 3D05-1591.,3D05-1591.
• Citation: 935 So.2d 547
• Court: Florida District Court of Appeals
• Parties: Jesus FERNANDEZ and Marisol Fernandez, Appellants, v. HOMESTAR AT MILLER COVE, INC., Appellee.

935 So.2d 547

Jesus FERNANDEZ and Marisol Fernandez, Appellants, v. HOMESTAR AT MILLER COVE, INC., Appellee.

No. 3D05-1591.

District Court of Appeal of Florida, Third District.

June 28, 2006.

Ruden, McClosky, Smith, Schuster & Russell and John H. Pelzer, Fort Lauderdale, and Norman S. Segall, Miami, and Brigid F. Cech, Fort Lauderdale, for appellants.

Leo Benitez and Lizette Benitez, for appellee.

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

ROTHENBERG, Judge.

The plaintiffs, Jesus Fernandez and Marisol Fernandez ("Purchasers"), appeal from an adverse final summary judgment entered in favor of the defendant, Homestar at Miller Cove, Inc., a Florida corporation ("Seller"). We affirm.

As a result of the Seller terminating a Purchase and Sale Agreement ("Agreement") that the parties entered into, the Purchasers filed a complaint against the Seller, asserting claims for breach of contract, breach of implied covenant of good faith and fair dealing, and specific performance. Thereafter, the Seller filed a motion for summary judgment. The trial court conducted a hearing, in which it reviewed the record and heard argument from the parties' counsel. Following the hearing, the trial court entered final summary judgment in favor of the Seller, finding that there were no genuine issues of material fact, and that based on its strict construction of the Agreement and an addendum to the Agreement, the Seller did not breach the Agreement by terminating it.

The undisputed facts, which were before the trial court, are as follows. The Purchasers and Seller entered into the Agreement, whereby the Purchasers agreed to buy from the Seller a specific lot and the single family dwelling erected on the lot or that would be erected on the lot by the Seller. The first page of the Agreement indicates that, in addition to the base purchase price of $227,900, the Purchasers agreed to pay an additional $29,300 for a covered terrace and swimming pool, for a total purchase price of $257,200.

Paragraph 1(B)(ii) of the Agreement, entitled "Mortgage Provision," provides, in part, as follows:

If a portion of the Purchase Price is to be paid out of the proceeds of a mortgage loan and the name of the SELLER APPROVED LENDER has been inserted on the first page of this agreement, then this contract will be subject to and/or conditioned upon Buyer obtaining a firm mortgage commitment. If the amount of the mortgage loan and the name of the lender have not been inserted, then this Contract is a cash sale and is not subject to and/or conditioned upon Buyer obtaining a firm mortgage commitment.

(Emphasis added). There was no approved lender inserted on the first page of the Agreement, and the Agreement reflects that the mortgage amount was zero. Therefore, pursuant to Paragraph 1(B)(ii), the transaction was an all "cash sale," which was not contingent upon the Purchasers obtaining permanent financing.

In addition, Paragraph 3 of the Agreement, entitled "Completion," provides, in part, as follows:

The issuance of a Certificate of Occupancy for the Residence or such other similar certification by the appropriate governmental authority will conclusively establish completion of the Residence and Purchaser's unconditional obligation to close. If any items that bring the Property into compliance with the standards of construction in the county where the property is located are not completed or finished by closing, the work on all such items shall be completed by Seller within a reasonable time after closing.

In addition, Paragraph 4 of the Agreement, entitled "Extras and Options," provides, in part, as follows:

Purchaser acknowledges and understands that Seller may not be able to obtain all or part of the extras prior to or at the time of closing. In such event, Seller shall, if possible, provide same as soon as is practicable, but in no event shall Purchaser hold back any funds at closing or object to final closing with full disbursement to Seller.

(Emphasis added).

Finally, Paragraph 8(a) of the Agreement, which is titled "Date and Place of Closing: Procedure and Payment," provides, in part, as follows:

Closing of title shall take place at the office of [left blank] at such time and on such day as Seller may designate to Purchaser, giving not less than (7) days oral or written notice (the "Closing Date") unless Seller and Purchaser agree to close at an earlier date. The closing shall be held after issuance of a Certificate of Occupancy or such other similar certificate by the appropriate governmental authority.

(Emphasis added).

The Purchasers also executed an addendum to the Agreement, entitled "Addendum # 3 Options, Upgrades, and Extras" ("Addendum # 3"). Addendum # 3 lists the terrace as an option, and provides the Purchasers with a $500 credit. In addition, the swimming pool is also listed as an option, with no additional amount charged.

The Seller pulled separate permits for the dwelling and swimming pool. On January 3, 2005, the Seller provided the Purchasers with the seven-day notice required by Paragraph 8(a) of the Agreement, and notified the Purchasers that the closing was scheduled for January 11, 2005. Thereafter, on January 7, 2005, the Seller obtained the certificate of occupancy for the dwelling. The pool, however, was still under construction.¹

Although this was a "cash sale," the Purchasers signed a mortgage loan application on January 5, 2005, just six days prior to the scheduled closing. On January 10, 2005, the Purchasers' lender faxed a loan approval letter, which was subject to the completion of the swimming pool. Despite that this transaction was a "cash sale," the Purchasers did not attend the scheduled closing because they were unable to obtain financing from their chosen lender because the swimming pool was not completed. When the Purchasers failed to appear at the scheduled closing, the Seller terminated the Agreement.

The Purchasers contend that the trial court erred by granting final summary judgment in favor of the Seller where the contract is ambiguous and there were genuine issues of material fact as to the meaning of the alleged ambiguities contained in the Agreement. We disagree.

A trial court's ruling on a motion for summary judgment regarding a pure question of law is reviewed de novo. See Roberts v. Sarros, 920 So.2d 193 (Fla. 2d DCA 2006); Barnier v. Rainey, 890 So.2d 357 (Fla. 1st DCA 2004) ("`The standard of review governing a trial court's ruling on a motion for summary judgment posing a pure question of law is de novo.'") (quoting Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001)). In addition, "[t]he standard of review applicable to the question of whether a contract is ambiguous is de novo," see Garcia v. Tarmac Am., Inc., 880 So.2d 807, 808 (Fla. 5th DCA 2004), and if a contract is unambiguous, the construction of the contract presents a question of law. See Jaar v. Univ. of Miami, 474 So.2d 239 (Fla. 3d DCA 1985); see also Leisure Resorts, Inc. v. City of West Palm Beach, 864 So.2d 1163, 1166 (Fla. 4th DCA 2003) ("The standard of review applicable to contract interpretation is de novo.").

In the instant case, the issue that the trial court was called upon to resolve was whether, as a matter of law, the Seller, based upon the Agreement, Addendum # 3, and undisputed facts, prematurely scheduled the closing. If the Seller prematurely scheduled the closing, the Purchasers, regardless of the fact that they did not attend the closing, were not in breach of the Agreement, and therefore, the Seller breached the Agreement by terminating the Agreement. On the other hand, if the Seller did not prematurely schedule the closing, then the Purchasers breached the Agreement by not attending the scheduled closing, and therefore, the Seller rightfully terminated the Agreement.

As did the trial court, we find that the Agreement and Addendum # 3 are clear and unambiguous. As such, we are required to construe these documents as written, since they are the best evidence of the parties' intent. See Khosrow Maleki, P.A. v. M.A. Hajianpour, M.D., P.A., 771 So.2d 628 (Fla. 4th DCA 2000) ("It is axiomatic that the clear and unambiguous words of a contract are the best evidence of the intent of the parties. Where contracts are clear and unambiguous, they should be construed as written, and the court can give them no other meaning.") (citations omitted); Walgreen Co. v. Habitat Dev. Corp., 655 So.2d 164, 165 (Fla. 3d DCA 1995) ("When a contract is clear and unambiguous, the court is not at liberty to give the contract `any meaning beyond that expressed.'") (quoting Bay Mgmt., Inc. v. Beau Monde, Inc., 366 So.2d 788, 791 (Fla. 2d DCA 1978)). A construction of Paragraph 3 of the Agreement indicates that the Purchasers' "unconditional obligation to close" is triggered by the "completion of the Residence," which is evidenced by the "issuance of a Certificate of Occupancy for the Residence or such other similar certification by the appropriate governmental authority." We conclude that the term "Residence," as used in Paragraph 3, includes only the actual dwelling, not the swimming pool. Therefore, once the Purchasers received the seven-day notice required by Paragraph 8(a) and the certificate of occupancy was issued, the Purchasers were obligated to close on the scheduled date.

In support of this conclusion, we note that the swimming pool is one of the options listed in Addendum # 3. When entering into the Agreement, the Purchasers, under Paragraph 4, acknowledged that the "Seller may not be able to obtain all or part of the extras prior to or at the time of closing," but that under "no event shall Purchaser . . . object to final closing with full disbursement to Seller." As such, the parties are bound by the clear and unambiguous language contained in the Agreement and Addendum # 3, which obligates the Purchasers to close the transaction once the certificate of occupancy is...