4D06-4324-Henley v. MacDonald

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State: Florida

Court: Florida Fourth District Court

Docket No: 4D06-4324

Case Date: 01/09/2008

Preview:DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2008

JOAN HENLEY, Appellant, v. LINDA MACDONALD, individually, Appellee. Nos. 4D06-4324 and 4D06-4614 [January 9, 2008] SHAHOOD, C.J. Joan Henley appeals an order granting summary judgment and final order of summary judgment in favor of Linda MacDonald, whom Henley sued for breach of contract. We reverse because there is a material question of fact as to whether the parties agreed to extend the closing date of the contract based on Paragraph VII of the contract, which provides for the transfer of marketable title. Henley ("buyer") entered into a written contract with MacDonald ("seller") for the purchase of a single family home in Pompano Beach, Florida. This contract specified a closing date of September 6, 2005. On September 6, 2005, the parties met at the subject property to do a final walk-through inspection. The seller noticed a small burnt spot on the floor and called the fire department. The fire department came to the house and explained that the problem was not something they dealt with and that it was a matter of code enforcement. The fire department called for a code enforcement officer and when the officer showed up he issued a code violation to the seller for electrical problems and another for the construction of an addition without a building permit. The buyer decided not to close on the property because she believed the code violations put a cloud on the title, rendering it unmarketable. The buyer then claims that the seller agreed to postpone the closing until the violations were corrected. The seller claims that she did not agree at any time to reschedule the closing to a later date. On September 7,

2005, the buyer faxed to the seller an extension of time in order for the seller to rectify the code violations. The seller did not sign this form. Subsequently, the code violations were corrected and the buyer asked to close on the house; the seller refused. The buyer filed a complaint against the seller alleging breach of contract for failing to close on the subject property. The seller filed a motion for summary judgment, which was granted by the trial court. Final judgment for the seller was thereafter entered. "Summary judgment is appropriate where, as a matter of law, it is apparent from the pleadings, depositions, affidavits, or other evidence that there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law." Vaughan v. Boerckel, 963 So. 2d 915, 919 (Fla. 4th DCA 2007). The buyer argues that the code violations run with the land and make the title unmarketable because they would subject the buyer to administrative proceedings and/or litigation after closing. The seller argues that code violations do not render a title unmarketable and even if they did, the buyer waived any defect by failing to provide written notice of any defects after receipt of a clean title and waived any defects at closing by agreeing to an "as is" rider. The violations in question were rendered pursuant to section 162.09(1), Florida Statutes (2005), which entitles county organizations to fine those who violate county code ordinances. These fines, if left unpaid, "may be recorded in the public records and thereafter shall constitute a lien against the land on which the violation exists and upon any other real or personal property owned by the violator."

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