Hollywood Mall, Inc. v. Capozzi, s. 87-2553

• Decision Date: 10 May 1989
• Docket Number: 88-1079,Nos. 87-2553,s. 87-2553
• Citation: 14 Fla. L. Weekly 1143,545 So.2d 918
• Parties: 14 Fla. L. Weekly 1143 HOLLYWOOD MALL, INC., a Florida corporation, Theodore R. Stotzer, Bernard Budd, William D. Horvitz and James O. Lewis, jointly and severally, Appellants, v. John V. CAPOZZI and Gibraltar Development, Inc., a Florida corporation, Appellees.
• Court: Florida District Court of Appeals

Page 918

545 So.2d 918

14 Fla. L. Weekly 1143

HOLLYWOOD MALL, INC., a Florida corporation, Theodore R. Stotzer, Bernard Budd, William D. Horvitz and James O. Lewis, jointly and severally, Appellants, v. John V. CAPOZZI and Gibraltar Development, Inc., a Florida corporation, Appellees.

Nos. 87-2553, 88-1079.

District Court of Appeal of Florida Fourth District.

May 10, 1989.

Rehearing Denied July 21, 1989.

William S. Spencer of Ellis, Spencer, Butler & Kisslan, Hollywood, and Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Fort Lauderdale, for appellant-Hollywood Mall, Inc.

Linda R. Spaulding, Michael J. McNerney and Harris Solomon of Brinkley, McNerney, Morgan & Solomon, Fort Lauderdale, for appellees-John V. Capozzi and Gibraltar Development, Inc.

WARNER, Judge.

This is an appeal from a final judgment granting specific performance of a real estate contract. The seller appeals claiming that (1) there was no valid, enforceable contract which could be enforced by specific performance, and (2) that even if there were a binding contract, the purchaser failed to prove that it was ready, willing, and able to perform its obligations under the contract. Thus the trial court erred in granting specific performance.

We find no error as to the first point on appeal. There was substantial, competent evidence to support the trial court's finding that there was a binding contract which had been accepted by the seller and whose acceptance was communicated to the purchaser. Kendel v. Pontious, 261 So.2d 167 (Fla.1972); Gateway Cable T.V., Inc. v. Vikoa Construction Corp., 253 So.2d 461 (Fla. 1st DCA 1971).

However, with respect to the second point, we find that the trial court erred in granting specific performance where there was no evidence that the purchaser was ready, willing and able to perform the contract. The letter of intent agreed to by John Capozzi or assigns as purchaser was formalized into a contract between Hollywood Mall, Inc., as seller, and Gibralter Development Corporation as purchaser. Gibralter was a corporation which was activated by Capozzi solely for the purchase of this property and whose stock was owned by Capozzi's children. At the organizational meeting of its board of directors of which Capozzi was chairman, the minutes reflect that the corporation did not have the funds yet available to pay the deposit for the proposed purchase, the deposit being $15,000, but that Capozzi would loan that amount to the corporation. Further Capozzi would agree to furnish such additional funds which may be required to meet expenses prior to the closing of the real estate transaction. There is nothing else to indicate how the corporation would secure the funds to close on this $1,850,000 contract.

Appellee responds to this lack of proof of Gibralter's ability to perform the contract by claiming that Capozzi would have produced the funds to close this cash transaction. Clearly, the trial court looked at Capozzi's ability to close the transaction because it found that "Plaintiff presented a prima facie case of [ready, willing and able buyer] by reference to plaintiff's [Capozzi's] other completed projects in Broward...." However, Mr. Capozzi was under no obligation to provide the funds to the corporation to close the transaction, and Gibralter cannot be considered to be ready, willing and able to perform when its only ability is derived from funds not within its control and subject to the gratuitous payment by another. See Winkelman v. Allen, 214 Kan. 22, 519 P.2d 1377, 1385 (Kan.1974); Potter v. Ridge Realty Corporation, 28 Conn.Sup. 304, 259 A.2d 758 (1969). However, even if we do consider the financial ability of Mr. Capozzi to close this transaction, such ability is nowhere present in this record. And it is the burden of proof of the plaintiff to show it is ready, willing and able to perform the contract to establish a prima facie case for specific performance. Glave v. Brandlein, 196 So.2d 780 (Fla. 4th DCA 1967).

What must the purchaser show to prove that he was "ready, willing, and able" to perform the contract? In Perper v. Edell, 160 Fla. 477, 35 So.2d 387 (1948) the Supreme Court stated that "(Financially) 'able' means that the proposed purchaser is able to command the necessary money to close the deal on reasonable notice or within the time stipulated by the parties." Although Perper was a suit to collect a broker's commission, a necessary element of proof was that the broker had to produce a purchaser ready, willing and able to perform. Thus, it is analogous to the instant situation. In Perper, the court held that evidence based on the financial responsibility and business standing of a proposed purchaser would be admissible to prove financial ability.

In Shell Oil Co. v. Kapler, 235 Minn. 292, 50 N.W.2d 707, 712 (1951), the Supreme Court of Minnesota stated in a case for specific performance:

Rules for testing a purchaser's financial ability to buy are not to be reduced to any unyielding formula, but must be flexible enough to accomplish their purpose according to the particular facts of each case. In ascertaining the rules reflected by an endless variety of cases, it is particularly important to bear in mind that no decision is authoritative beyond the scope of its controlling facts....