Sosa v. Shearform Mfg., 5D00-131.

• Decision Date: 18 May 2001
• Docket Number: No. 5D00-131.,5D00-131.
• Parties: Alvin SOSA, Appellant, v. SHEARFORM MANUFACTURING, etc., et al., Appellee.
• Court: Florida District Court of Appeals

784 So.2d 609

Alvin SOSA, Appellant, v. SHEARFORM MANUFACTURING, etc., et al., Appellee.

No. 5D00-131.

District Court of Appeal of Florida, Fifth District.

May 18, 2001.

Roger G. Stanway, Hollywood, for Appellant.

Marcia K. Lippincott of Marcia K. Lippincott, P.A., Lake Mary, for Appellee, John F. Wylie.

No Appearance for Appellee, Shearform Manufacturing, etc.

PETERSON, J.

UPON MOTION FOR REHEARING AND CLARIFICATION

We grant Alvin Sosa's motion for rehearing and clarification, withdraw our earlier opinion, and substitute the following.

Alvin Sosa appeals a judgment following a non-jury trial finding that he was not entitled to relief against John F. Wylie for breach of contract, money lent, fraud, mismanagement of funds, and civil theft.

Sosa was enticed by Wylie to loan $100,000 to Shearform Manufacturing, L.L.C. (Shearform), a Michigan limited liability company. A form or outline of an agreement was prepared by Wylie's wife, a layperson, that required Sosa to loan Shearform $150,000 in installments of $100,000 and $50,000. The agreement also provided that Sosa would immediately become a one-third "owner"¹ of Shearform and that a Michigan attorney would immediately draw up and implement a purchase agreement² between "Wylie/(sic) Lewis and Sosa." Lewis was named as the third party to the agreement and took part in the negotiations by phone.

Sosa made the initial $100,000 payment to Shearform, but did not make the second $50,000 installment when he failed to receive the purchase agreement that was to be immediately prepared by a Michigan attorney. Although Wylie and Lewis had the obligation to see that this was accomplished, Wylie was frustrated by the failure of Lewis to carry out this task. Nevertheless, Wylie made demand upon Sosa for the $50,000 installment. When Sosa failed to make the loan to Shearform, Wylie advised him that he was neither a director³ nor member of Shearform. It appears that no effort was ever made to carry out the promise to make Sosa a member, immediately; this omission constituted a breach of the agreement and preceded Sosa's refusal to pump more funds into Shearform.

The trial court found that although Wylie's initials appeared on the outline of the agreement, it was not tantamount to a signature because there was an issue as to when and for what purpose Wylie had penned a notation and initials on the typed draft. Even if parties do not sign a contract, they may be bound by the provisions of the contract, if the evidence supports that they acted as if the provisions of the contract were in force. See James Register Constr. Co. v. Bobby Hancock Acoustics, Inc., 535 So.2d 339, 340 (Fla. 1st DCA 1988)

; see also Gateway Cable T.V., Inc. v. Vikoa Constr. Corp., 253 So.2d 461, 463 (Fla. 1st DCA 1971). We accept the court's finding on this issue.

We do not agree with the court's conclusion that Sosa first breached the agreement by failing to pay the second installment to Shearform. See generally Calhoun v. Corbisello, 100 So.2d 171 (Fla. 1958)

. "Where the time for the performance of an executory contract ... is being performed, and one of the parties notifies the other unequivocally that he will not perform or further perform his part,... the latter may treat the contract as... entirely broken by the former, and, if ready and willing to perform his part, sue him at once for an entire breach of the contract...." Mori v. Matsushita Elec. Corp. of America, 380 So.2d 461, 464 (Fla. 3d DCA 1980) (quoting Sullivan v. McMillan, 26 Fla. 543, 8 So. 450, 457-59 (1890)). It was Wylie and Lewis who first breached the agreement with Sosa...