Philpot v. Bouchelle

• Decision Date: 22 March 1982
• Docket Number: No. AC-357,AC-357
• Citation: 411 So.2d 1341
• Parties: John V. PHILPOT, Appellant, v. Edwin L. BOUCHELLE, Jr., Appellee.
• Court: Florida District Court of Appeals

Page 1341

411 So.2d 1341

John V. PHILPOT, Appellant, v. Edwin L. BOUCHELLE, Jr., Appellee.

No. AC-357.

District Court of Appeal of Florida, First District.

March 22, 1982.

Marlin M. Feagle, Lake City, for appellant.

Frederick L. Koberlein of Brannon, Brown, Norris, Vocelle, Haley, Brown & Robinson, Lake City, for appellee.

ERVIN, Judge.

Philpot (the lessor) appeals from a final judgment entered in accordance with a jury verdict finding him in breach of a lease/option to purchase contract. Philpot contends that the trial court erred in refusing to grant his motions for directed verdict. We agree and reverse.

First, we reject the appellee's argument that the appellant did not properly preserve the issue for review. The record reveals that the appellant made a motion for directed verdict both at the close of the appellee's case-in-chief and at the close of the case. Additionally, he renewed his motion at the charge conference after all the the evidence had been presented. Therefore, the issue has been preserved. See 6551 Collins Avenue Corp. v. Millen, 104 So.2d 337 (Fla.1958).

As to the merits of the appeal, the record reveals that on or about June 10, 1979, the parties entered into a 12-month lease agreement providing for the rental of Philpot's condominium unit, which agreement, by its terms, extended from June 15, 1979 to June 14, 1980. The appellee agreed to pay the annual sum of $5,400, in increments of $450 per month, beginning the 15th day of each month. Paragraph 14 of the lease provided that appellee could exercise his option to purchase from November 15, 1979 to April 15, 1980. The appellee was to provide $1,000 in consideration in the form of personal note that was payable within 90 days to the appellee. It was also provided that the lessee/appellee was to spend a minimum of $2,500 for the purpose of installing carpeting, window tint, sun shading, interior painting, double glass thermal, and noise resistant windows within five months after the execution of the lease. And the lessee was required as of November 15, 1979, to furnish the lessor with "satisfactory evidence" of $2,500 worth of completed improvements. If these improvements were not documented by that date, the option was to be null and void.

Paragraph 15 of the contract provides:

The rights of the lessor under the foregoing shall be cumulative and the failure on the part of the lessor to exercise properly any rights given hereunder shall not operate to forfeit any of the said rights.

(e.s.)

Paragraph 16 of the contract further provides: "It is understood and agreed between the parties hereto that time is of the essence of this contract and applies to all terms and conditions contained herein."

The appellee wrote to the appellant on April 11, 1980, informing him that he desired to exercise the option. The appellant replied by letter dated April 16, 1980, that the appellee had not satisfied the conditions precedent to the permissible exercise of the option due to his failure to pay timely the monthly rental amounts, and to install no less than $2,500 in improvements to the unit pursuant to the terms of the agreement. The appellee, under threat of eviction, moved out of the condominium on June 23, 1980. Shortly thereafter, the appellee sued for breach of contract. The case then proceeded to a jury trial.

The appellee's case-in-chief at trial consisted primarily of his testimony. He testified that he substantially accomplished all the conditions of the lease and the option. Although he admitted that his rent payments and the payment on the note had been late, he stated that the appellant had accepted all of his late payments "graciously." He also admitted that all of the $2,500 worth of improvements had not been completed by November 15, 1979, but that he did have all the improvements under contract at that time. He testified that he had replaced the carpets in the condominium, which constituted the major share of the $2,500 by the time he moved into the condominium in June, 1979, and that he had returned the old carpets to the appellant. He admitted, however, that the appellant did not actually see the new carpet installed inside the condominium, or know its exact cost. The appellee's wife nevertheless testified that the appellant's wife had seen it within the unit. The appellee also testified that he ultimately made over $2,500 worth of improvements to the condominium, and he furnished documentation of these improvements when requested by the appellant in his letter of April 16, 1980. The other improvements consisted of vinyl tiling work and new curtains. According to the appellee, the appellant never warned him that his late performance caused a forfeiture of the option until the appellee received the April 16 letter from the appellant. The appellee, moreover, testified that he did not notice the appellant had endorsed the reverse side of his rent payment checks with limited endorsements to the effect that the payments were accepted under protest; that the option was considered null and void; that the lease had been broken and that the appellant now considered the rental to be on a month-to-month basis. Although he did not scrutinize the endorsements, he admitted that his accountant normally processed his checks and thoroughly reviewed them.

The appellant testified in defense that the purpose of the conditions of the options, which was communicated to the appellee at the time of the execution of the lease, was to provide assurances to appellant by November 15, 1979, that the appellee intended to exercise the option in order for appellant to purchase other property in New Port Richey. He did not deny that he allowed tardy performance on the early rent payments and on the note; however, in January, 1980, he informed the appellant that the option in the lease had been broken because of the appellant's untimely payments. At that time, the appellee tendered late checks for the October, November and December rental months. The appellant also admitted that while he suspected ...