Wolfe v. 224 Via Marila, LLC

• Decision Date: 11 May 2022
• Docket Number: 4D21-1312
• Citation: 338 So. 3d 912
• Parties: ESTATE OF Rosemarie WOLFE, THROUGH its Personal Representative Robert R. MAASS, Esq., Appellant, v. 224 VIA MARILA, LLC, Appellee.
• Court: Florida District Court of Appeals

338 So.3d 912

ESTATE OF Rosemarie WOLFE, THROUGH its Personal RepresentativeRobert R. MAASS, Esq., Appellant,

v.224 VIA MARILA, LLC, Appellee.

No. 4D21-1312

District Court of Appeal of Florida, Fourth District.

[May 11, 2022]

J. Michael Burman and Bernard Lebedeker of Reid Burman Lebedeker, Xenick Peppin, West Palm Beach, and Kara Rockenbach Link of Link & Rockenbach, P.A., West Palm Beach, for appellant.

Roberto M. Vargas, Scott G. Hawkins and Brett T. Lashley of Jones Foster, P.A., West Palm Beach, for appellee.

Warner, J.

When a seller declared a breach of a real estate contract by the buyer based upon nonperformance, buyer sued for return of its deposit.The court granted summary judgment, concluding that seller had breached first by failing to provide documents referred to in the title commitment, even though those documents had been supplied previously to buyer.Because we conclude that a jury question exists as to whether seller substantially complied with the contract's terms, we reverse.

Seller, Rosemarie Wolfe, entered into a contract with buyer, Charles Willis(who later transferred his contractual right to 224 Via Marila, LLC), for the purchase of Wolfe's Palm Beach home.The contract included an escrow deposit of $370,000.The parties’ contract was a Florida Bar approved " ‘AS IS’ Residential Contract for Sale and Purchase."Section 9(c) of the contract states:

TITLE EVIDENCE AND INSURANCE: At least 5 ... days prior to Closing Date ("Title Evidence Deadline"), a title insurance commitment issued by a Florida licensed title insurer, with legible copies of instruments listed as exceptions attached thereto ("Title Commitment") and, after Closing, an owner's policy of title insurance ... shall be obtained and delivered to Buyer.

Section 18(A)(ii) provided for "Title Examination" by the buyer, stating:

Buyer shall have 5 days after receipt of Title Commitment to examine it and notify Seller in writing specifying defect(s), if any, that render title unmarketable.If Seller provides Title Commitment and it is delivered to Buyer less than 5 days prior to Closing Date, Buyer may extend Closing for up to 5 days after date of receipt to examine same[.]

Other portions of paragraph 18 dealt with electronic delivery as being acceptable to comply with the contract provisions.

Shortly after the contract was signed, seller provided a title commitment to buyer with the copies of documents listed as exceptions (such as plats) furnished electronically to the buyer by email.The email contained links to the actual documents in the public records.Buyer did not give notice within five days of any objection to the documents or the title commitment.

Three weeks later, at seller's request, the parties executed an addendum to the contract, extending the closing date for a year to March 31, 2020.The addendum did not change any other terms of the contract.

In the meantime, the title commitment, which was valid for only six months, expired.Also, in March 2020, Mrs. Wolfe passed away.Her estate became the seller of the property.

About two weeks prior to the extended closing, buyer's counsel called seller's counsel and stated that buyer did not want to close due to changes in the stock market from the pandemic.Two days later, seller's counsel provided an "updated title commitment" with a letter, stating that "[w]e furnished you copies of the exceptions last March."The letter accompanying the title commitment further stated that seller stood ready and willing to close on the March 31 contract date.Counsel closed by stating, "I trust you will find the commitment in order, but if you have any questions or comments, please let me know."

The next day, buyer sent a letter attempting to invoke the force majeure clause, contending that the novel coronavirus qualified under those provisions.Buyer notified seller that it intended to invoke the clause and cancel the contract.The letter did not mention the title commitment.

Four days before closing, and more than five days after the delivery of the updated title commitment, buyer sent a letter with title objections due to the failure of seller to provide the recorded documents supporting the exceptions contained in the title commitment.Buyer also objected to the legal description, without stating what was wrong with the description.

Seller's counsel responded to buyer's counsel the day before closing, stating that the second commitment was identical to the original title commitment furnished a year earlier and bore the same number.The exceptions had not changed and had been included in the hyperlinked email sent a year earlier.

On the day of closing, buyer's counsel wrote that no title commitment had been provided a year earlier, and it was up to seller to figure out what was wrong with the legal description.The same day, seller's counsel sent an email attaching the original correspondence from the year before with the original title commitment and documents containing the exceptions.Counsel sent a second email with copies of the documents supporting the exceptions in the title commitment.After 5 p.m. on the date of closing, when buyer failed to close, seller's counsel sent a notice of default.Seller elected to recover the escrow deposit as liquidated damages.

Buyer filed a declaratory judgment action to seek a determination that it was not liable to seller and was entitled to a refund of the deposit.Buyer asserted that seller had breached the contract by not providing legible copies of title exceptions in the commitment by the date provided in the contract and by anticipatorily repudiating the contract by claiming that the buyer defaulted on the closing date when seller had not performed prior to declaring the default.

Seller filed an answer, affirmative defenses, and a counterclaim for breach of the real estate contract by the buyer's failure to close entitling seller to retain the deposit.Seller alleged "[a]ll conditions performance to this action have occurred or been waived."Seller also denied that it had breached the contract.In buyer's answer and affirmative defenses to seller's counterclaim, buyer raised the failure to provide the title exception instruments as an unperformed condition precedent to plaintiff's counterclaim.

Buyer moved for summary judgment on its complaint for declaratory judgment on the limited issue of whether seller breached the contract by failing to timely provide a title commitment and associated documents, thereby discharging buyer from performance and liability for the liquidated damages.Buyer argued that the failure to deliver the title commitment and attached documents was an unperformed condition precedent to buyer's obligation to object to the title commitment and thus to close.Buyer did not move for summary judgment based on force majeure .

Seller responded that there were disputed issues of material fact regarding whether seller provided appropriate title evidence and whether seller failed to deliver marketable title.Seller filed multiple documents, affidavits, and depositions.Those attachments included an affidavit from seller's counsel's paralegal stating that she had emailed the original title commitment and schedule of exceptions to buyer's counsel's paralegal a year earlier.A Microsoft Word file contained the title exceptions with embedded hyperlinks which would take the reader to the proper document in the public records.Buyer's paralegal never emailed seller's paralegal to complain that she could not open the hyperlinks.Furthermore, those same hyperlinks worked at a deposition of buyer's counsel's paralegal taken after buyer filed suit.

Seller's counsel pointed out that buyer made no objection in the five days after seller's letter with the second title commitment.Not until March 27, 2020, nine days after the delivery of the commitment did buyer send a letter with objections and for the first time state that none of the exception documents had been provided.Seller's counsel maintained that not only had the seller complied with all the contract provisions, but also there was no material breach.The documents had been provided and the exceptions did not constitute defects affecting marketability of the property.

The trial court granted summary judgment, concluding that the addendum to the contract amounted to a "re-set" of all contractual obligations.Thus, seller did not comply with a condition precedent because legible copies of instruments listed as exceptions were not attached to the title commitment delivered prior to the 2020 closing date.The court concluded that seller committed three breaches: 1) failing to "attach" to the second commitment "legible copies of instruments listed as exceptions," as required by paragraphs 9(c) and 18A(i), with seller's letter on March 18, 2020, thereby failing to perform a condition precedent; 2) failing to provide the exception documents required to accompany the second commitment at least five days prior to closing per paragraph 9(c) of the contract, and instead providing them on the day of closing; and 3) insisting upon closing on March 31, 2020, thereby depriving buyer of its right to "Title Examination" and option to "extend Closing for up to 5 days after date of receipt to examine same," when the title commitment was delivered to buyer less than five days prior to closing date as required pursuant to paragraph 18(A)(ii).

The court entered final judgment in favor of buyer and ordered the return of the deposit.Seller's counterclaim was dismissed with prejudice.Seller appeals the judgment.

Review of an order granting summary judgment is de novo.Fla.Inv. Grp. 100, LLC...