Jordan v. Boisvert, 92-3590
| Decision Date | 23 February 1994 |
| Docket Number | No. 92-3590,92-3590 |
| Citation | 632 So.2d 254 |
| Parties | 19 Fla. L. Weekly D446 Nell JORDAN, Appellant, v. Paul T. BOISVERT, Appellee. |
| Court | Florida District Court of Appeals |
Ferrin C. Campbell, Sr., Crestview, for appellant.
John L. Miller, of Johnson, Green & Locklin, P.A., Milton, for appellee.
Appellant, Nell Jordan, appeals from a final judgment of the trial court in which the trial court denied specific performance of a contract for sale and purchase of real property, and reserved jurisdiction to determine the amount of attorney's fees and costs to be awarded to the defendant. We affirm in part, and reverse in part.
On September 29, 1989, the parties to this appeal entered into a contract for sale and purchase of real property. Attached to the contract was a drawing or sketch of the general area of the property. The contract fixed the price, contained a description, and called for a survey to establish the exact legal description of the property to be conveyed.
A month later appellee contacted appellant's representative by letter, concerning the survey of the property to be conveyed. The letter states in relevant part:
... please be advised that the survey should reflect a line from Pat Brown Road at the gate located across the road from Dorothy's property line (where excavation has begun) to the old dead tree south of the pond, then to the brush pile in the center of the pond, then across the pond to a point on the far Northwest corner where (N35[degrees] ' E 194 Feet and N76[degrees] 16" E 188.2 Feet) meet. If you and the others decide to use these new measurements the price for any additional acres not originally agreed to will be $3000.00 an acre. You have the option of having the line drawn to the East of the excavation and run down the fence line to the cross fence then to the brush pile and then to the willow tree as was originally agreed. My desire is to not deed Nell or Dana more than 8 acres as that is what was represented to me when we made the deal. We will not really know how many acres are involved until the survey is complete and the calculations are made, I wanted to put you on notice of my intent to maximize my return on my investment.
On August 14, 1990, appellant filed a complaint for specific performance of the contract to sell and purchase real property. Attached to the complaint were a copy of the contract, and several descriptions of the property to be conveyed. Appellee filed an answer and amended answer, denying that the contract contained a precise legal description and adding a request for attorney's fees and costs.
Ricky Sears of True North Surveying Services, Inc., surveyed the property on behalf of appellant. The first survey, dated June 4, 1990, indicated that the proposed sale involved 5.95 acres. Appellee did not accept this legal description, contending it was not what he agreed to convey. Appellee obtained a second survey prepared by Ricky Sears, the surveyor who prepared the first survey for appellant. This survey, dated June 19, 1990, reflects 5.40 acres. Appellee maintained this second survey contained the legal description contemplated by the parties pursuant to the contract. Appellant rejected the legal description on the second survey, and had Ricky Sears do a third legal description.
At the bench trial, surveyor Sears testified that based on the contract, he was uncertain about a line using "willow tree to left on west bank," because there were several willow trees. Sears asked the son of a former owner to identify the specified willow tree. During the course of Sears' testimony, the trial court asked:
Q. ... If you consider the contract and the drawing together without anybody on the land to help you, would you be able to consider them together and draw an accurate survey based upon the legal description using the points in the contract and the drawing that was attached to the contract? Or is there still going to be vagueness in the description?
A. I believe there would still be some vagueness.
Q. In what ... respect?
A. You could follow the contract as far as going from the north side--or to the east side of the dirt excavation--well, how far do you go to the east side of the dirt excavation? You could probably set a point within a several foot area.
The stump pile is clearly identified in the lake because it's the only thing in the lake. The stump pile is not on the drawing that I see.
On September 4, 1992, the trial court issued its final judgment. The court ruled that the legal description in the contract was insufficient to allow a surveyor to locate and establish boundaries on the land, and further ruled that appellee was entitled to recover costs, including attorney's fees, as the prevailing party. Appellant filed a motion for rehearing or reconsideration, alleging the trial court erred in failing to consider Exhibit 5, the letter from appellee dated October 31, 1989, as extrinsic evidence, and further alleging that if rehearing were denied, the contract would be considered null and void--and attorney's fees cannot be awarded in such case. The trial court denied rehearing.
A trial court's judgments are entitled to a presumption of correctness, particularly where the evidence is conflicting and there is substantial evidence to support the trial court's findings and conclusions. Mogee v. Haller, 222 So.2d 468, 470 (Fla. 1st DCA 1969). Such findings will not be disturbed in the absence of a clear showing that the trial court committed error or the evidence demonstrates the judge's conclusions were clearly erroneous. Id.
Fundamental to a grant of specific performance of a contract for purchase and sale of real property is "whether a surveyor with the deed before him and with or without the aid of extrinsic evidence can locate the land and establish the boundaries." Mogee v. Haller, 222 So.2d at 469. See also Whaley v. Wotring, 225 So.2d 177, 180 (Fla. 1st DCA 1969). 23 Am.Jur.2d 269, Deeds, Sec. 226. The decision whether to decree specific performance of a contract to convey real...
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