J. C. Penney Co., Inc. v. Koff

• Decision Date: 18 March 1977
• Docket Number: No. 75--2162,75--2162
• Citation: 345 So.2d 732
• Parties: J. C. PENNEY COMPANY, INC., Appellant, v. Richard KOFF, Appellee.
• Court: Florida District Court of Appeals

Page 732

345 So.2d 732

J. C. PENNEY COMPANY, INC., Appellant, v. Richard KOFF, Appellee.

No. 75--2162.

District Court of Appeal of Florida, Fourth District.

March 18, 1977.

Rehearing Denied May 20, 1977.

Paul R. Regensdorf of Fleming, O'Bryan & Fleming, Fort Lauderdale, for appellant.

Samuel L. Heller, Fort Lauderdale, for appellee.

CARLTON, Associate Judge.

Appellant, J. C. Penney, Inc., a Delaware corporation authorized to do business in the State of Florida, appeals a final judgment entered by the trial court denying the appellant's claim for specific performance and for damages and granting appellee's counter-claim for rescision of a sale and purchase agreement and awarding damages pursuant thereto.

On December 17, 1973, appellant, J. C. Penney Company, Inc., entered into a sale and purchase agreement with appellee, Richard Koff, for the sale of certain land totalling 9.615 acres in the City of Lauderdale Lakes, Broward County, Florida. Nogotiations had been conducted over a 25 month period prior to this. At the time the sale and purchase agreement was entered into, the zoning applicable to the subject property was R--4A which allowed 28 condominium units per acre. On March 26, 1974, prior to closing, the City of Lauderdale Lakes revised its description of R--4A zoning and provided that such development could not have more than 12 condominium units per acre. Thus making the venture less profitable to appellee. The closing was scheduled to take place April 23, 1974. Shortly before the closing appellee Koff delivered notice of rescision relying on the fact that the zoning had been changed.

Appellant Penney filed a complaint for specific performance and damages on the sale and purchase agreement between it and the appellee Koff. Appellee filed his answer denying appellant's right to specific performance and for damages and filed a counter-claim for the return of funds it deposited under the sale and purchase agreement as well as for the reimbursement of certain other funds spent under a collateral agreement between appellee and the City of Oakland Park, Florida. At the termination of the non-jury trial, the court entered a final judgment denying appellant Penney's request for specific performance, denying appellant's claim for damages and finding for appellee Koff on the counterclaim for the rescision of the sale and purchase agreement. The trial court further awarded appellee the sum of $65,000 in damages. This sum represented $10,000 as a deposit on the sale and purchase agreement and $55,000 for the sum appellee paid on the collateral agreement with the City of Oakland Park, Florida.

Appellee's primary case in the trial court consisted of attempting to show an ambiguity in the sale and purchase agreement and utilizing various parol testimony and prior correspondence in an attempt to support his position for denial for specific performance. The trial court over objections of appellant held that certain provisions in the sale and purchase agreement were ambiguous and allowed into evidence parol testimony and certain prior correspondence between the parties.

The substance of the parol evidence was to establish that appellee because of the change of density requirements between the execution of the contract and the scheduled closing would have a less profitable business venture and that appellee did not intend to be bound by the sale and purchase agreement if there was a change in the density.

Paragraph 1A, 1C and 6 of the sale and purchase agreement must be examined for ambiguities. They are as follows:

'1. AGREEMENT TO SELL AND PURCHASE.

Seller shall sell and Purchaser shall purchase good and marketable fee simple title to the Premises described on Exhibit 'A' subject to the following:

'A. Applicable building laws, Zoning Ordinances, laws and other regulations of any governmental body, subdivision, or agency having jurisdiction existing At the date of closing of title, provided the same do not prohibit the construction of residential type units As permitted under zoning ordinance category R--4A of the zoning ordinance of the City of Lauderdale Lakes, Florida including an apartment complex and recreational amenities including tennis courts, swimming pools and a health club.' . . . (Emphasis added)

'C. All covenants, agreements, restrictions and easements of records; provided the same do not prohibit the construction of residential type units As provided under zoning ordinance category R--4A of the zoning ordinance of Lauderdale Lakes, Florida including an apartment complex and recreational amenities including tennis courts, swimming pools and a health club.' (Emphasis added)

6. NO REPRESENTATIONS BY SELLER

'Seller makes and has made no representation, statement, warranty or guarantee as to the conditions, fitness or value of the Premises. The execution of this Argeement has not been procured by any representation, statement, warranty or guarantee not herein contained and Purchaser agrees to accept the Premises 'as is' as of the date hereof.' (Emphasis added)

Appellee contends that the phrases 'as permitted' under Paragraph 1A, 'as provided' under Paragraph 1C and 'as is as of the date hereof' under Paragraph 6 were ambiguous and therefore, parol evidence should be received by the court to determine what was meant by these phrases.

In reviewing the contract in an attempt to determine its true meaning, the court must review the entire contract without fragmenting any segment or portion. Royal American Realty, Inc., v. Bank of Palm Beach and Trust Company, Fla.App., 215 So.2d 336; International Erectors, Inc. v. Wilhoit Steel Erectors and Rental Service, 400 F.2d 465. In Ross v. Savage, 66 Fla. 106, 63 So. 148 the Supreme Court held:

'The entire instrument must be considered in order to gather the real intent and to determine the true design of the makers thereof. To that end all the different provisions of such instrument must be looked to, and all construed so as to give the effect to each and every of them, if that can reasonably de done. . . .'

'When parties deliberately put their engagement into writing, in such terms as import a legal obligation without any uncertainty as to the object or extent of engagement, it is, as between them, conclusively presumed that the whole engagement and the extent and manner of their...