ROBERT F. VENEMA, BONNIE J. VENEMA, HIS WIFE, AND MIAMI SPRINGS AUTO SERVICE, INC., APPELLANTS,
v.
HUBERT D. TOST AND MARILYN N. TOST, HIS WIFE, INDIVIDUALLY AND THE SANTIAGO CORPORATION, APPELLEES
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The court reversed a specific performance order because the contract's property description was insufficiently detailed and parol evidence cannot cure patent ambiguities; the court also found the trial court erred in failing to apply laches as a defense.
A contract for the sale of real property that does not sufficiently describe the property in question is not capable of specific performance, and parol evidence cannot be used to remove patent ambiguities in the legal description.
[1] Parol evidence cannot be used to remove a patent ambiguity in the legal description of real property in a conveyance.
[2] A trial court errs in failing to apply the laches defense in a specific performance action, particularly where the contract contains a time-is-of-the-essence provision.
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Join FLexlaw to unlock all legal intelligenceVenema and Miami Springs Auto Service sought specific performance of a contract to purchase real property from Tost and Santiago Corporation. The cont…
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PER CURIAM.
We reverse the order of the trial court granting specific performance upon a holding that the contract upon which enforcement is sought does not sufficiently describe the real property in question and, thus, is not capable of specific performance. Florida Bank & Trust Co. at West Palm Beach v. Field, 157 Fla. 261, 25 So. 2d 663 (1946); Fox v. Sails At Laguna Club Development Corp., 403 So. 2d 456 (Fla. 3d DCA 1981); Hart v. Freeman & Sons, Inc., 226 So. 2d 708 (Fla. 3d DCA 1969); see also Farrell v. Phillips, 414 So. 2d 1119 (Fla. 4th DCA 1982); The Bay Club, Inc. v. Brickell Bay Club, Inc., 293 So. 2d 137 (Fla. 3d DCA 1974).
The use of parole evidence to remove a patent ambiguity with respect to a legal description in a conveyance is error. Connelly v. Smith, 97 So. 2d 865 (Fla. 3d DCA 1957); see also Hunt v. First National Bank of Tampa, 381 So. 2d 1194 (Fla. 2d DCA 1980).
The trial court erred in failing to apply laches as defense in this specific performance action. DeHuy v. Osborne, 96 Fla. 435, 118 So. 161 (1928). Our view is reinforced since the contract in this case contains a “time is of the essence” provision. Pattison v. Reid, 303 So. 2d 40 (Fla. 3d DCA 1974).
Having concluded that specific performance will not lie, we remand to the trial court the breach of contract action which was not passed upon in the first instance. The judgment, in all other respects, is.affirmed.
Affirmed in part, reversed in part, and remanded for further proceedings.
PER CURIAM.
The court’s opinion is modified by adding the following paragraph:
In view of the foregoing, we conclude that the existing lease between Venema and Miami Springs Auto Service, Inc., should not be cancelled.
Accordingly, paragraph two of the final judgment cancelling the lease is likewise reversed.
We otherwise adhere to our previously expressed views.
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Nell Jordan v. Boisvert, 632 So. 2d 254 (Fla. 1st DCA 1994)…tract] is such that the court is able to identify the particular property to the exclusion of all other property, by pursuing an inquiry based upon the words of reference. In an earlier case, the third DCA took a more stringent view. Venema v. Tost, 424 So. 2d 786, 787 (Fla. 3d DCA 1982). In Vene-ma, the court reversed a grant of specific performance, because the contract upon which enforcement was sought did not sufficiently describe the real property in question. The court held it is error to use parol evid…
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Bowein v. Sherman, 374 So. 3d 895 (Fla. 6th DCA 2023)…a patent ambiguity because it appeared on the face of the agreement; no extrinsic facts or evidence were needed to reveal the ambiguity”). Because the ambiguity at hand is patent, parol evidence cannot be used to cure it. See, e.g., Venema v. Tost, 424 So. 2d 786 (Fla. 3d DCA 1982) (holding use of parol evidence to remove patent ambiguity in legal description contained in deed is error and thus specific performance will not lie); Mendelson v. Great W. Bank, F.S.B., 712 So. 2d 1194, 1196 (Fla. 2d DCA 1998) (“…
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Venema v. Tost, 426 So. 2d 1028 (Fla. 3d DCA 1983)…PER CURIAM. During pendency of Venema v. Tost, 424 So. 2d 786 (Fla. 3d DCA 1982), the trial court, without a relinquishment of jurisdiction, entered an order granting attorneys fees to the prevailing party. This order is the subject of the instant appeal and it is hereby reversed because the underlying final j…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hunt v. First Nat'l Bank OF Tampa, 381 So. 2d 1194 (Fla. 2d DCA 1980)
- DeHuy v. Osborne, 96 Fla. 435 (Fla. 1928)
- Emilio FOX and Frances Fox v. The Sails AT Laguna Club Dev. Corp., 403 So. 2d 456 (Fla. 3d DCA 1981)
- The BAY Club, Inc. v. Brickell BAY Club, Inc., 293 So. 2d 137 (Fla. 3d DCA 1974)
- Connelly v. Alleen Smith, 97 So. 2d 865 (Fla. 3d DCA 1957)
- Fla. Bank & Tr. Co. AT W. Palm Beach v. Field, 157 Fla. 261 (Fla. 1946)
- Hart v. Freeman & Sons, Inc., 226 So. 2d 708 (Fla. 3d DCA 1969)
- Farrell v. Phillips, 414 So. 2d 1119 (Fla. 4th DCA 1982)
- Pattison v. Reid, 303 So. 2d 40 (Fla. 3d DCA 1974)