Opinion
No. 87-1296.
July 6, 1988.
Appeal from the Circuit Court for Broward County; Louis Weissing, Judge.
Alan K. Fertel and Sara R. Robinson of Haley, Sinagra Perez, P.A., Miami, for appellant.
Robert M. Panisch, Plantation, for appellee.
AFFIRMED. See Mayer v. First National Company of Sarasota, 99 Fla. 173, 125 So. 909 (1930).
GUNTHER, J., concurs.
GLICKSTEIN, J., concurs specially with opinion.
ANSTEAD, J., dissents with opinion.
Involved herein is a developer's purchase and sale agreement with a prospective buyer. The specific title of the document is "THE VILLAGE AT BOCA RIO PURCHASE AND SALE AGREEMENT."
Among the introductory lines of the agreement is the following: "LOT AND VILLA NO. ____; OR LOT AND TOWNHOME NO. 14." Paragraph 1 of the agreement reads as follows:
1. AGREEMENT TO PURCHASE: Seller agrees to sell and Purchaser agrees to purchase the above described Lot together with Townhome or Villa. The Lot together with Townhome or Villa and the Village at Boca Rio are legally described and depicted in greater detail in the proposed Homeowner's Documentation and related materials delivered to Purchaser.
All of the relevant so-called documentation to which paragraph 1 of the agreement refers is blank; thus Mayer should govern.
The developer's answer does not raise the defense to which the dissent alludes, nor does the dissent provide evidentiary support in the record nor precedential authority for the viability of the theory upon which the dissent is based; namely, the actual knowledge of the parties of the location of the proposed townhouse as precluding summary judgment pursuant to section 725.01, Florida Statutes (1985).
I agree with the following conclusions of the trial court:
4. No evidence was presented that any other property description, other than those contained in the "Contract" and the "Homeowner's Documentation," was made apart [sic] of or incorporated into the "Contract."
5. The Defendant made no proffer to aid, supplement or explain the property description contained in the "Contract" or the "Homeowner's Documentation" by affidavit or otherwise.
6. No other affidavits, or offers of proof were proffered by either party, and only those facts alleged in Plaintiff's Complaint which were admitted to by the Defendant are relied upon herein, or are apart [sic] of this record.
7. The property description contained in the "Contract" and accompanying "Homeowner's Documentation" does not as a matter of law adequately describe the property being sold, nor does it furnish the means by which the realty can be identified with reasonable certainty.
8. As a result of the inadequate property description the Defendant did not deliver to Plaintiff a complete, legally enforceable contract, hence the contract was voidable.
9. The Plaintiff did exercise his right to void the "Contract" and demand the return of his money, and has not waived his right by acquiescence for an unreasonable length of time. Mayer v. First National Company of Sarasota.
I dissent because I do not believe this was an appropriate case for the entry of summary judgment based solely on the allegations of the appellee's complaint and the portions thereof admitted by the appellant in its answer. The appellee sued the appellant developer to recover a deposit made on a townhouse to be constructed in appellant's development project. The appellee sought to cancel the deal after initially claiming by letter that the appellant had unduly delayed in constructing the unit which was under construction at the time of the attempted cancellation. The trial court granted summary judgment on the grounds that the paperwork furnished the appellee did not contain an adequate legal description of the townhouse. I do not believe the facts are sufficiently developed to permit summary judgment. In my view, it is apparent that the location of the unit under construction at the time of the attempted cancellation was well known to the parties and was described with sufficient particularity in the contract documents to allow it to be identified and located by them.