Citation Codes

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Docket Number

Nos. 76-669, 76-766.

Attorney(S)

Frank A. McClung, Brooksville, for Albert and Anne Robinson. Daniel B. Merritt, Sr., McGee, Merritt High, Brooksville, for Robert and Marilyn Abreu.

Judges

BOARDMAN, Chief Judge.

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Smart Summary

Case Summary: Albert A. Robinson & Anne M. Robinson v. Robert Abreu & Marilyn Abreu

Court: District Court of Appeal of Florida, Second District

Docket Numbers: Nos. 76-669, 76-766

Date: May 4, 1977

Panel: Boardman, Chief Judge (opinion); McNulty and Ott, JJ., concur.

Factual and Procedural Background

On October 12, 1971 the parties signed a written contract for the sale of real property. The contract set the purchase price at $7,500, required that the closing occur on or before December 15, 1971, and expressly provided that "time was of the essence." The contract allocated the purchase price among cash and assumption of an escrow agreement requiring $50 per month, and identified a $100 deposit.

Buyers Albert A. and Anne M. Robinson filed suit for specific performance against sellers Robert and Marilyn Abreu on January 27, 1975. The sellers filed an answer and an affirmative defense. After a final hearing, the trial court entered an order on November 4, 1975 dismissing the buyers' cause of action and denying specific performance.

The buyers' attorney did not learn of that ruling for several months. On April 9, 1976 the trial court granted the buyers' Fla.R.Civ.P. 1.540(b)(1) motion for relief from judgment, set aside and vacated the November 4 final judgment, and entered an amended final judgment that was identical to the original. The sellers appealed the vacation of the original final judgment (Case No. 76-766). The buyers appealed the amended final judgment denying specific performance (Case No. 76-669). The appeals were consolidated for review.

The record establishes that the contractual closing did not occur on or before December 15, 1971 and the cash payment due at closing was not received by the sellers by that date. Anne Robinson testified the sale was to be completed by mail; she mailed the cash payment on December 16, 1971, and she mailed it to the real estate broker rather than directly to the sellers. The broker deposited the check into the realty company's escrow account on December 20, 1971. Robert Abreu testified he expected the broker would receive the funds; he also testified that he notified the buyers by telephone that he was withdrawing his offer because of the buyers' failure to perform under the written contract.

Legal Issues Presented

Whether buyers were entitled to specific performance of the written contract where they failed to make the cash payment by the contract's stated closing date when the contract provided that "time was of the essence."
Whether the broker's receipt and deposit of the buyers' late payment could be treated as acceptance by the sellers (i.e., whether the broker had authority to accept late payment or whether the sellers ratified the broker's act).
Whether the trial court's order granting relief from judgment (vacating the original final judgment and entering an identical amended judgment) presented reversible error (interlocutory appeal in Case No. 76-766), as affected by the court's disposition on the specific performance issue.

Arguments of the Parties

Buyers' Arguments

The broker was the sellers' agent, so his receipt and deposit of the Robinsons' check constituted acceptance of payment by the sellers despite the payment being mailed after the closing date.
Implied in their position is that dealings having occurred through the broker support the broker's authority to accept timely payment or to complete the sale by mail.

Sellers' Arguments / Trial Evidence Supporting Sellers

The sellers presented uncontradicted testimony (Robert Abreu) that he withdrew his offer to sell by telephone because the buyers failed to perform according to the written contract.
Implicitly, the sellers contested that the broker had authority to modify the contract terms or accept late payment and denied any ratification or approval of the broker's receipt of funds.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Fredrick v. Squillante, 144 So.2d 848 (Fla. 2d DCA 1962)	The principle that a principal is bound only by the acts of an agent which are within the scope of the agent's authority or by acts outside that authority which are subsequently ratified by the principal.	The court invoked this agency-law principle to require evidence that the broker had express, implied, or apparent authority to accept payment after the closing date or that the sellers ratified the broker's act; the buyers failed to make that showing.
Firestone v. Firestone, 263 So.2d 223 (Fla. 1972)	The appellate-review principle that if the conclusion of the trial court is correct, it will not be disturbed regardless of the reason given by the trial court.	The court relied on this principle to explain that it need not decide whether the trial court's laches finding was correct because the appellate court's independent holding on the contract performance issue disposed of the appeal.

Court's Reasoning and Analysis

The court's analysis proceeded in the following steps, limited strictly to the facts and legal statements contained in the opinion:

Contractual terms: The court emphasized that the written contract expressly required closing on or before December 15, 1971 and stated that "time was of the essence." The purchase price allocation and payment structure were described in the contract.
Performance failure: The court found as a matter of record that the closing did not occur as required and that the cash payment due at the closing was not received by the sellers by December 15. The buyers mailed the check on December 16 to the broker, who deposited it on December 20; these facts were unrefuted.
Agency analysis: The buyers argued that the broker, as the sellers' agent, accepted the late payment on the sellers' behalf. The court applied the settled rule of agency law—citing Fredrick v. Squillante and secondary authorities—that a principal is bound only by actions of an agent within the agent's authority or by acts ratified by the principal.
Application of agency rule to the record: The court found that the buyers had failed to show the broker had express, implied, or apparent authority to modify the contract term (to accept payment after the closing date) or that the sellers had ratified the broker's act or even had knowledge of the broker's receipt of funds. The court noted the uncontradicted testimony of Robert Abreu that he had communicated by telephone his withdrawal of the offer because of the buyers' nonperformance.
Equitable relief principle: The court stated the black-letter proposition that a party is not entitled to specific performance when that party did not perform according to the clear and unambiguous terms of the contract (citing an authority on specific performance).
Disposition of consolidated appeals: Based on the foregoing legal analysis and factual findings, the court affirmed the judgment denying specific performance (Case No. 76-669) and concluded that it need not reach the interlocutory appeal in Case No. 76-766 because the resolution of the specific performance issue disposed of the consolidated appeal. The court also observed that because its conclusion was correct it need not examine the trial court's separate laches-based reasoning.

Holding and Implications

HOLDING: The appellate court affirmed the trial court's denial of specific performance. The opinion concludes with the single-word disposition: AFFIRMED.

Implications:

Direct effect: The buyers are not entitled to specific performance of the contract because they failed to perform in accordance with the clear and unambiguous contractual term that time was of the essence and the agreed closing date was not met. The sellers' withdrawal of their offer was consistent with the record.
Agency implication: Receipt and deposit of a check by a broker will not, without more, bind a principal to accept a late payment or a modification of contract terms; authority to accept such a modification or subsequent ratification by the principal must be shown.
Procedural implication: Because the appellate court's disposition on the specific performance issue resolved the consolidated appeal, the court did not reach the interlocutory issue concerning the trial court's grant of relief from judgment; additionally, the court declined to evaluate the trial court's laches finding because the appellate result did not depend on it.
Precedential effect: The opinion applies established agency and specific-performance principles to the facts and does not announce a new rule of law beyond the authorities and reasoning cited in the opinion.

Note: Where the opinion referenced additional treatises and annotations (e.g., Am.Jur.2d Agency; 30 A.L.R.2d; 29A Fla.Jur. Specific Performance), those were used to support the discussion of agency principles and the equitable remedy of specific performance; the table above lists only the published case law cited in the opinion.

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ALBERT A. ROBINSON AND ANNE M. ROBINSON, HIS WIFE, APPELLANTS, v. ROBERT ABREU AND MARILYN ABREU, HIS WIFE, APPELLEES. ROBERT ABREU AND MARILYN ABREU, HIS WIFE, APPELLANTS,

BOARDMAN, Chief Judge.

We have for review a consolidated appeal of Case No. 76-766, an interlocutory appeal from an order granting relief from judgment, and Case No. 76-669, a direct appeal from an amended final judgment denying specific performance.

Albert A. and Anne M. Robinson, buyers, on January 27, 1975, filed a complaint in the Circuit Court of Hernando County against Robert and Marilyn Abreu, sellers, praying for specific performance of a written contract to convey certain real property. The sellers filed an answer and affirmative defense. Following a final hearing the trial court denied the buyers the relief prayed for and entered an order dismissing the cause of action on November 4, 1975. The buyers' attorney did not become aware of the court's ruling until several months later at which time he filed a Fla.R.Civ.P. 1.540(b)(1) motion for relief from judgment, which was granted on April 9, 1976. The trial court set aside and vacated the final judgment of November 4, and entered an amended final judgment identical to the original final judgment. The sellers appeal the vacation of the original final judgment, and the buyers appeal the amended final judgment.

The written contract signed by the parties, dated October 12, 1971, provided, among other conditions, that the closing was to take place on or before December 15, 1971, and that time was of the essence. The purchase price of the realty was $7,500. The contract provided that $1,958.83, less the $100 deposit, was to be paid in cash, and the buyers were to assume an escrow agreement requiring a $50 per month payment.

The record on appeal conclusively discloses that the closing did not take place according to the contract. It is unrefuted that the cash payment due at the closing was not received by the sellers by December 15. Anne Robinson testified that the sale was to be completed by mail. However she did not mail the cash payment until December 16, and she mailed it to the real estate broker, not to the sellers. The broker testified that he deposited the check in the realty company's escrow account on December 20. Robert Abreu's testimony that he expected that the broker would receive the funds and Anne Robinson's testimony that all of their dealings had been through the broker could establish that the broker was authorized to accept timely payment.

The buyers argue that because the broker was the sellers' agent his receipt and deposit of the Robinson check constitute acceptance of the late payment by the sellers. It is a well-settled rule of agency law however that a principal is bound only by the acts of his agent which are within the scope of his authority or by an act outside of his authority but which is subsequently ratified by the principal. E.g., Fredrick v. Squillante, 144 So.2d 848 (Fla.2d DCA 1962). 3 Am.Jur.2d Agency § 122 (1962); Annot., 30 A.L.R.2d 804 (1953). The buyers have failed to show that the broker had express, implied or apparent authority to modify the terms of the contract to accept payment after the closing date. Nor is there evidence to show that the sellers ratified or approved the act of the broker or that they even had knowledge of the broker's receipt of the funds. In fact, the uncontradicted testimony of Robert Abreu was that he notified the buyers by telephone that he was withdrawing his offer to sell the property because of their failure to perform according to the written contract. A party to a contract is not entitled to specific performance of that contract where he did not perform his obligations according to the clear and unambiguous terms of the contract. See 29A Fla.Jur. Specific Performance § 46 (1967). Accordingly, Case No. 76-669 is affirmed. We need not decide the issue presented in Case No. 76-766 since the question raised on appeal is disposed of by our holding in Case No. 76-669.

The trial court ruled that the buyers were not entitled to specific performance on the ground of laches based on the length of time between the accrual of the cause of action and the initiation of this suit. In view of our decision we need not determine whether the trial court's findings of fact and conclusions of law were correct. It is a cardinal principle of appellate review that if the conclusion of the trial court is correct it will not be disturbed regardless of the reason for the ruling. E.g., Firestone v. Firestone, 263 So.2d 223 (Fla. 1972).

AFFIRMED.

McNULTY and OTT, JJ., concur.

ROBINSON v. ABREU