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Tranquil Harbour Development, LLC v. BBT, LLC

Florida Court of Appeal, First District

December 30, 2011

TRANQUIL HARBOUR DEVELOPMENT, LLC, a Limited Liability Company, Appellant/Cross Appellee,
v.
BBT, LLC (212 & 311); Claude Brousseau & Ann Marie Dugre (303); E & N, Inc. (103); Joseph Ferraro (211); Richard & Jane Kisel (205); Leonard Marnell (207); Jar Enterprises, LLC (105 & 108); L. Dennis Panter (107 & 206); Maria Costopolous (107); Guy & Barbara Ruvolo (106); Jeff & Dorsey Shiver (102); Judith Ann Wade (301 & 309); Tony Whitfield, Pam McClure, Teresa Carlton, Janie Schmarge, Darlene Madden, Vic George, S & S Family Properties, LLC (101); and, Bryan & Misty Morgan (210), Appellees, and Bonnie Strickland, Sylvia Lang, Nell Wooten, and Mike Nobles, Appellees/Cross Appellants.

Rehearing Denied Feb. 13, 2012.

Page 85

Douglas L. Smith and Michael J. Hauversburk, Panama City, for Appellant/Cross Appellee.

Charles A. Costin of Costin & Costin, Port St. Joe, for Appellees and Appellees/Cross Appellants.

PER CURIAM.

This appeal and cross-appeal arise out of a consolidated action disposing of several breach-of-contract claims and counterclaims. The contracts at issue govern the construction and sale of eighteen units within the Tranquil Harbour Development in Mexico Beach, Florida. In the trial court, the purchasers contended that the developer failed to comply with a contract provision requiring the timely completion and delivery of the units, and the developer contended that the purchasers breached by refusing to close when, in fact, the units were timely completed. The trial court ruled in favor of the purchasers as to seventeen units, but in favor of the developer as to one (Unit 111). The developer appealed, and the purchasers of Unit 111 cross-appealed. We affirm the appeal without discussion and reverse the cross-appeal.

On June 9, 2005, the developer and four purchasers entered into a subscription and purchase agreement governing the construction and closing of Unit 111. At some point, the agreement dated June 9, 2005, was changed to remove one purchaser and replace her with another person. On October 27, 2005, following a request by the new purchaser and the one who had been removed, the four original purchasers and the developer signed a new subscription and purchase agreement for Unit 111. The new agreement had the same terms as the original. On July 24, 2007, the City of Mexico Beach issued a Certificate of Occupancy for Unit 111, and on February 15, 2008, the surveyor's certificate required

Page 86

under section 718.104(4)(e), Florida Statutes (2004), was recorded for the building in which Unit 111 is located.

In the trial court, the purchasers of Unit 111 sought the return of their deposit money pursuant to Paragraph 16 of the parties' contract. Paragraph 16, which governs completion and delivery of the unit, provides as follows:

COMPLETION. Developer covenants to complete the unit that is the subject of this agreement within Two (2) years of the date of this agreement. Such two (2) year period may, however, be extended due to acts of God, inability to obtain materials or any other events constituting an impossibility of performance under Florida Law. If developer is unable to deliver the completed unit by said date, then purchaser, in addition to any other rights and remedies in law or equity, shall be entitled to demand a return of the purchaser's deposit hereunder and developer shall be obligated to promptly return the deposit or purchaser shall have the right to seek specific performance or any other remedy, if purchaser is entitled to such remedies by operation of law.

The trial court rejected the purchasers' argument that the unit was not timely completed, finding that the October 27 contract was a novation and that the Certificate of Occupancy signaled the completion of the unit. Accordingly, the trial court rendered judgment for the developer as to Unit 111.

In their cross-appeal, the purchasers challenge the finding that the October 27 contract was a novation and the ruling that the Certificate of Occupancy is the instrument signaling completion of the unit for the purposes of enforcing Paragraph 16. Given the plain language of the parties' contract and the Florida statutes governing the construction and sale of condominiums, we hold that the trial court erred as a matter of law in using the Certificate of Occupancy as the controlling instrument for determining compliance with Paragraph 16's deadline. The interplay between the contract and the governing statutes leads us to further hold that the recording of the surveyor's certificate of substantial completion was the relevant event. This holding renders the novation issue moot; regardless of whether the operative contract was the June 9 document or the October 27 document, the developer failed to meet its obligations under Paragraph 16 and, thus, is required to return the purchasers' deposit and any interest earned thereon.

The Legislature has enacted statutes specifically for the purpose of establishing " procedures for the creation, sale, and operation of condominiums." ยง 718.102, Fla. Stat. (2004). Because a condominium is strictly a creature of statute, the language of the statutes in effect on the date of the declaration of condominium [1] " is as controlling as if engrafted onto" a contract governing its purchase and sale. Suntide Condo. Ass'n, Inc. v. Div. of Fla. Land Sales & Condos., Dep't of Bus. Regulation,463 So.2d 314, 317 (Fla. 1st DCA 1984). Therefore, we must construe the requirements of Paragraph 16 in light of Florida's condominium statutes. The dispositive issue in this case turns on our construction of the parties' contract and the governing statutes. ...


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