274 So. 3d 438
Fla. Dist. Ct. App.2019Background
- All Seasons Condominium Association (Seller) entered a Master Purchase Agreement (Oct 19, 2010) to sell a 106‑unit building to Simon Nemni; the Agreement required Seller to obtain written consent from 100% of unit owners within 120 days (deadline Feb 16, 2011) and tied closing to that Sale Approval.
- Each unit owner who agreed executed an individual Supplemental Contract incorporating the Master Agreement; those Supplemental Contracts contained a proxy clause (¶9(f)), a "time is of the essence" clause, and an anti‑modification clause requiring any amendment to be in writing signed by all parties.
- In Dec 2010, Nemni’s counsel requested a 60‑day extension by email; the Association’s president (Dedesma) and others treated the emails as extending the deadline to Apr 16, 2011, but no unit owner re‑executed or signed a written amendment before Feb 16, 2011.
- On Apr 13, 2011 the Board unanimously approved a First Addendum extending the deadline in multiple 60‑day increments; on Dec 11, 2011 the Association sent a termination letter and released escrow.
- Patrician (assignee of Nemni) sued for specific performance; the trial court found the proxy language and Supplemental Contracts authorized the Board to act for unit owners and entered final judgment for specific performance; the appellate court reverses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ¶9(f) proxy in Supplemental Contracts authorized the Board to extend Sale Approval/deadlines | Proxy (and related conduct/emails/Addendum) created authority for Board/Dedesma to bind unit owners and extend deadlines | Proxy is invalid under condo law; no written, signed amendment by each unit owner as required by the contracts and statute of frauds | Proxy language is not a valid general or limited proxy under chapter 718; it did not authorize unilateral modification; held for defendants |
| Whether the Board and Dedesma had actual agency authority from unit owners to modify essential terms | ¶9(f) and Supplemental Contracts granted actual authority to take actions reasonably necessary to close, including deadline extensions | No manifestation by individual unit owners to grant such broad actual authority; anti‑modification clause forecloses oral changes | No actual agency; contract language construed as whole precludes such grant |
| Whether Board/Dedesma had apparent authority to bind unit owners by acting on the sale | Patrician relied on Board statements/emails and conduct to reasonably believe Board had authority | No representations by unit owners to third parties; reliance was unreasonable and created by the purported agents themselves | No apparent authority; third‑party reliance not reasonable |
| Whether the statute of frauds or anti‑modification provisions permit enforcing the Dec 2010 emails/Apr 2011 Addendum | Plaintiff argued partial performance and conduct removed the transaction from statute of frauds and validated extensions | Oral/email extensions not signed by unit owners; statute of frauds and written‑amendment clause bar enforcement | Statute of frauds and anti‑modification clause prevent oral modification; no enforceable contract existed after Feb 16, 2011 |
Key Cases Cited
- Muniz v. Crystal Lake Project, LLC, 947 So.2d 464 (Fla. 3d DCA 2006) (standard of review for specific performance is abuse of discretion)
- Castigliano v. O'Connor, 911 So.2d 145 (Fla. 3d DCA 2005) (elements for granting specific performance)
- Fox v. Sails at Laguna Club Dev. Corp., 403 So.2d 456 (Fla. 3d DCA 1981) (statute of frauds requires written contract signed by the party to be charged and contains essential terms)
- Bradley v. Sanchez, 943 So.2d 218 (Fla. 3d DCA 2006) (provision requiring written, signed modifications precludes oral waiver/modification)
- Bloom v. Weiser, 348 So.2d 651 (Fla. 3d DCA 1977) (powers of attorney strictly construed; grant limited to specified powers)
- Izquierdo v. Hialeah Hosp., Inc., 709 So.2d 187 (Fla. 3d DCA 1998) (apparent authority depends on principal's manifestations; agent's conduct alone insufficient)
- DK Arena, Inc. v. EB Acquisitions I, LLC, 112 So.3d 85 (Fla. 2013) (statute of frauds construed strictly to prevent fraud)