Bydalek v. Saenz

368 So.3d 508

Jeffrey BYDALEK, Appellant, v. Eduardo SAENZ, Appellee.

No. 3D22-2085

District Court of Appeal of Florida, Third District.

Opinion Filed August 2, 2023

Rodolfo Nuñez, P.A., and Rodolfo Nuñez, for appellant.

Lerman & Whitebook, P.A., and Carlos D. Lerman (Hollywood), for appellee.

Before EMAS, LINDSEY and BOKOR, JJ.

EMAS, J.

Jeffrey Bydalek, the defendant below ("Seller"), appeals final summary judgment entered in favor of Eduardo Saenz, the plaintiff below ("Buyer"), in an action filed by Buyer following a failed real estate transaction for the purchase and sale of a residential condominium unit.

Pursuant to the terms of the purchase agreement and an addendum thereto, the closing was scheduled to take place on May 4, 2021. The agreement contained a condominium rider, which provided:

THIS AGREEMENT IS VOIDABLE BY BUYER BY DELIVERING WRITTEN NOTICE OF THE BUYER'S INTENTION TO CANCEL WITHIN 3 DAYS, EXCLUDING SATURDAYS, SUNDAYS AND LEGAL HOLIDAYS, AFTER THE DATE OF EXECUTION

OF THIS AGREEMENT BY THE BUYER AND RECEIPT BY BUYER OF A CURRENT COPY OF THE DECLARATION OF CONDOMINIUM, ARTICLES OF INCORPORATION, BYLAWS AND RULES OF THE ASSOCIATION, AND A COPY OF THE MOST RECENT YEAR-END FINANCIAL INFORMATION AND FREQUENTLY ASKED QUESTIONS AND ANSWERS DOCUMENT, IF SO REQUESTED IN WRITING. ANY PURPORTED WAIVER OF THESE VOIDABILITY RIGHTS SHALL BE OF NO EFFECT. BUYER MAY EXTEND THE TIME FOR CLOSING FOR A PERIOD OF NOT MORE THAN 3 DAYS, EXCLUDING SATURDAYS, SUNDAYS AND LEGAL HOLIDAYS, AFTER THE BUYER RECEIVES THE DECLARATION OF CONDOMINIUM, ARTICLES OF INCORPORATION, BYLAWS AND RULES OF THE ASSOCIATION, AND A COPY OF THE MOST RECENT YEAR-END FINANCIAL INFORMATION AND FREQUENTLY ASKED QUESTIONS AND ANSWERS DOCUMENT, IF REQUESTED IN WRITING. BUYER'S RIGHT TO VOID THIS AGREEMENT SHALL TERMINATE AT CLOSING. ¹

(Emphasis added).

Although the closing was scheduled for May 4, 2021, it is undisputed that the closing never took place. On May 13, 2021, Buyer notified Seller that Buyer was canceling the agreement for failure to receive the above-referenced condominium documents, and demanded the return of his deposit. When Seller refused to return the deposit, Buyer filed suit for breach of contract. Seller contended that Buyer was not entitled to the return of his deposit because Buyer had failed to close on the agreed-upon date and that the right to void the agreement terminated on the agreed-upon date scheduled for closing, even if the closing never took place.

Buyer filed a motion for summary judgment, asserting that because he canceled the agreement prior to his receipt of the condominium documents, he was authorized under the agreement to void the agreement and was thereby entitled to return of his deposit as a matter of law. Seller argued that Buyer's right to void the agreement on the basis of a failure to provide the requisite condominium documents terminated on the date of the scheduled closing and therefore, the Buyer's cancellation nine days after the scheduled closing date was of no effect.

After a hearing, the trial court granted Buyer's motion for summary judgment, finding that because Buyer never received the condominium documents required under the agreement, and because a closing (though scheduled) never took place, Buyer maintained the right to void the agreement. The trial court later denied Seller's motion for rehearing, and this appeal followed.

We review de novo the trial court's construction of a contract and of a statutory provision. See Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) ; Priority Med. Ctrs., LLC v. Allstate Ins. Co., 319 So. 3d 724, 726 (Fla. 3d DCA 2021).

The language contained in the agreement at issue is imported verbatim from section 718.503(2)(d)2., Fla. Stat. (2021), which provides that an agreement for the sale of a residential condominium unit must contain the following clause in conspicuous type:

THIS AGREEMENT IS VOIDABLE BY BUYER BY DELIVERING WRITTEN NOTICE OF THE BUYER'S INTENTION TO CANCEL WITHIN 3 DAYS, EXCLUDING SATURDAYS, SUNDAYS, AND LEGAL HOLIDAYS, AFTER THE DATE OF EXECUTION OF THIS AGREEMENT BY THE BUYER AND RECEIPT BY BUYER OF A CURRENT COPY OF THE DECLARATION OF CONDOMINIUM, ARTICLES OF INCORPORATION, BYLAWS AND RULES OF THE ASSOCIATION, AND A COPY OF THE MOST RECENT YEAR-END FINANCIAL INFORMATION AND FREQUENTLY ASKED QUESTIONS AND ANSWERS DOCUMENT IF SO REQUESTED IN WRITING. ANY PURPORTED WAIVER OF THESE VOIDABILITY RIGHTS SHALL BE OF NO EFFECT. BUYER MAY EXTEND THE TIME FOR CLOSING FOR A PERIOD OF NOT MORE THAN 3 DAYS, EXCLUDING SATURDAYS, SUNDAYS, AND LEGAL HOLIDAYS, AFTER THE BUYER RECEIVES THE DECLARATION, ARTICLES OF INCORPORATION, BYLAWS AND RULES OF THE ASSOCIATION, AND A COPY OF THE MOST RECENT YEAR-END FINANCIAL INFORMATION AND FREQUENTLY ASKED QUESTIONS AND ANSWERS DOCUMENT IF REQUESTED IN WRITING. BUYER'S RIGHT TO VOID THIS AGREEMENT SHALL TERMINATE AT CLOSING .

(Emphasis added).

The significant portion of this statutory language is the last sentence, which provides: " BUYER'S RIGHT TO VOID THIS AGREEMENT SHALL TERMINATE AT CLOSING" (emphasis added). "At closing" means when the closing occurs; takes place; is consummated. Thus, under the plain language of the statute, and the corresponding purchase agreement, Buyer's right to void the agreement had not terminated because the closing had not occurred. Seller urges this court to construe the plain language above to mean that the buyer's right to void the agreement terminates "on the date agreed upon...