04-0891 ADRIAN V. DE LA FUENTE

SUPREME COURT CASES

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State: Florida

Court: Florida Third District Court

Docket No: 04-0891 ADRIAN V. DE LA FUENTE

Case Date: 12/29/2004

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM A.D., 2004 ** ** ** ** ** ** ** ** LOWER TRIBUNAL NO. 02-24425 CASE NO. 3D04-891

ADRIAN DEVELOPERS CORP., a Florida corporation; ADRIAN HOME COMMUNITIES, LTD., a Florida corporation; AHC AT MONARCH LAKES, LTD., a Florida corporation; ADRIAN HOMES WITH PMBC; MILLER SOUTH CORP., a Florida corporation, and PEDRO ADRIAN, Appellants/Cross-Appellees, vs.

FRANCISCO DE LA FUENTE, individually and as trustee, and ** BARBARA LEWIS DE LA FUENTE, ** Appellees/Cross-Appellants. Opinion filed December 29, 2004. An Appeal from the Circuit Court for Miami-Dade County, Jerald Bagley, Judge. Paul Morris and appellants/cross-appellees. Brooks & Alayon, LLP., for

Billbrough & Marks, P.A., and Geoffrey B. Marks; Roland R. St. Louis, for appellees/cross-appellants.

Before COPE and GODERICH, JJ., and HARRIS, Charles M., Senior Judge. PER CURIAM. This appeal involves a time of the essence contract in which a payment was not timely made but which, when made, was not timely rejected. terminate an agreement Thus, the issue is whether a right to flowing from a time of the essence

provision is waived by not terminating the agreement in a timely manner. We affirm the trial court's determination that the

agreement was not properly terminated but reverse on the issue of whether the purchaser should be permitted to proceed to

purchase under the agreement. On August 8, 2001, Adrian Developers Corp., as buyer, and Francisco de la Fuente, as seller, entered into an agreement to buy and sell certain real estate. The contract contained a time

of the essence provision and required that the transaction close by February 6, 2003. The contract, after some earlier

modifications, provided that a second deposit in the amount of $130,000 be made on or before February 6, 2002. However, the

second deposit was not made until February 13, some seven days late, at which time buyer requested an addendum authorizing this late payment. Some ten days after the second deposit was made, the seller notified the buyer that the addendum authorizing the extension 2

of time for making the second deposit would be granted only if the buyer waived certain title objections. When the buyer

rejected this condition, the seller brought an action to quiet title and to determine that the contract had been properly

terminated.

The buyer counterclaimed for breach of contract and

specific performance. The trial court, in essence, held that one who wishes to claim under a time of the essence provision must do so in a timely manner. Even though the second deposit had not been made

on the 6th as required by the contract, it was not until the 22nd that the seller put a condition on accepting the addendum which would have extended the payment date. the payment had been made. By this time, however,

And when buyer rejected seller's

condition causing seller to terminate the contract, seller did not instruct the escrow agent to return the deposit. The trial court, on the authority of Lance v. MartinezArango, 251 So. 2d 707 (Fla. 3d DCA 1971), determined that the contract was not properly terminated. We agree and affirm.

However, even though the court held that the contract had not been properly terminated, it refused to grant relief to the buyer on the basis that the buyer had not proved that it was ready, willing and able to proceed to closing. The buyer did

not show, said the court, that it had sufficient funds in its account to close nor did it show that financing arrangement had

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been made.

The trial court further explained that the buyer had

not conducted the environmental audit nor had it completed a survey of the property, both of which would have been necessary to obtain financing. It appears to us, however, that when the

buyer announced its intent some ten months before the scheduled closing to terminate the contract and filed action to do so, it relieved the buyer from proceeding to financing until the matter was resolved. The buyer in this case was not seeking to force

an immediate, premature closing but merely to require the seller to comply with its obligations under the contract so that buyer could do what was required of it to meet its contractual

obligations.

In other words, the buyer requested the court to

restore the parties to the status quo by putting them in the position they we in prior to the seller's unsuccessful attempt to terminate. AFFIRMED We believe the court erred in not doing so. in part; REVERSED in part, and REMANDED for

further action consistent with this opinion.

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