J. Lynn Const. v. Fairways at Boca Golf

• Decision Date: 05 July 2007
• Docket Number: No. 4D06-3997.,No. 4D06-3437.,4D06-3437.,4D06-3997.
• Citation: J. Lynn Const. v. Fairways at Boca Golf, 962 So.2d 928 (Fla. App. 2007)
• Parties: J. LYNN CONSTRUCTION, INC., a Florida corporation, Appellant, v. The FAIRWAYS AT BOCA GOLF & TENNIS CONDOMINIUM ASSOCIATION, INC., a Florida not for profit corporation, Appellee.
• Court: Florida District Court of Appeals

962 So.2d 928

J. LYNN CONSTRUCTION, INC., a Florida corporation, Appellant, v. The FAIRWAYS AT BOCA GOLF & TENNIS CONDOMINIUM ASSOCIATION, INC., a Florida not for profit corporation, Appellee.

No. 4D06-3437.

No. 4D06-3997.

District Court of Appeal of Florida, Fourth District.

July 5, 2007.

Rehearing Denied September 10, 2007.

Daniel B. Lacesa of Fox, Wackeen, Dungey, Beard, Sobel, Bush & McCluskey, LLC, Stuart, for appellant.

Robert Rivas of Sachs & Sax, Tallahassee, for appellee.

HOROWITZ, ALFRED J., Associate Judge.

J. Lynn Roofing Contractors, Inc. (hereinafter "Lynn Roofing") contends the trial court erred in granting a partial summary judgment and final judgment in favor of The Fairways at Boca Golf & Tennis Condominium Association, Inc. (hereinafter "Fairways"). We agree.

"The standard of review for an order granting summary judgment is de novo." 5th Ave. Real Estate Dev., Inc. v. Aeacus Real Estate Ltd., 876 So.2d 1220, 1221 (Fla. 4th DCA 2004). "Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). "In reviewing a summary judgment, this court `must consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party ... and if the slightest doubt exists, the summary judgment must be reversed.'" 5th Ave., 876 So.2d at 1221 (quoting Krol v. City of Orlando, 778 So.2d 490, 492 (Fla. 5th DCA 2001)). Additionally, the interpretation of a contract is a question of law. Khosrow Maleki, P.A. v. M.A. Hajianpour, M.D., P.A., 771 So.2d 628, 630 (Fla. 4th DCA 2000).

On November 18, 2004, Fairways entered into a written contract with Lynn Roofing for construction and repairs with respect to the condominium buildings. Pursuant to paragraph 16 of the contract, Lynn Roofing was to obtain a performance bond covering contract compliance. Lynn Roofing applied for and attempted to obtain the performance bond prior to commencing work; however, due to collateralization requirements, obtaining the bond became impractical.

As a result of this difficulty in obtaining the performance bond, counsel for both Lynn Roofing and the association negotiated an alternative course of conduct. Specifically, the association agreed to accept a personal guaranty by Lynn Roofing's president, as well as a modified payment schedule which favored the association, in lieu of the performance bond requirement. This understanding was memorialized in correspondence dated December 22, 2004, from counsel for the association to Lynn Roofing's counsel, confirming that, pursuant to recent negotiations, the association had agreed to accept the personal guaranty and modified payment schedule in lieu of the performance bond requirement in paragraph 16 of the contract. Enclosed with this correspondence was an addendum to be signed by Lynn Roofing, as well as the personal guaranty to be signed by Lynn Roofing's president, in her individual capacity. On December 23, Lynn Roofing's counsel faxed to the association's counsel an acknowledgement of receipt of the addendum as well as copies of purchase orders, evidencing outlays by Lynn Roofing of $23,610.90 for materials.

On January 3, 2005, the signed addendum and personal guarantee were returned to counsel for the association. That same day, the association's counsel sent Lynn Roofing's counsel a letter informing them that effective December 30, 2004, the board of directors had "temporarily revoked" the acceptance of the personal guarantee and modified payment schedule set out in the December 22 letter. There is a factual dispute as to whether the signed addendum and personal guarantee were sent to and received by the association's counsel before the revocation letter was sent to and received by Lynn Roofing's counsel.¹

On January 6, 2005, the association's counsel sent a letter to Lynn Roofing's counsel terminating the contracts. On that same date, Lynn Roofing's counsel sent a letter to the association's counsel stating that Lynn Roofing considered the contract in full force and effect pursuant to the association's acceptance of the modifications in its letter of December 22, 2004.

Lynn Roofing asserts that the December 22 letter from the association's counsel was a knowing, voluntary waiver and modification of the contract provision requiring a performance bond and that Lynn Roofing reasonably relied upon the association's acceptance of the modification to the contract. Further, Lynn Roofing contends that Section 11 of the contract which requires modifications to be in writing and signed by both parties was waived by the association and relied upon by Lynn Roofing. The association contends that the addendum and personal guarantee were not modifications of the contract which would release the requirement of the performance bond. The trial court agreed with the association, relying on the parol...