BELLA VISTA, INC., A FLORIDA CORPORATION, APPELLANT,
v.
INTERIOR & EXTERIOR SPECIALTIES CO., INC., A FLORIDA CORPORATION, APPELLEE
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A Florida condominium developer/seller appeals from a judgment that found the purchase agreement unconscionable and ordered return of the buyer's deposit. The court reversed, holding that the trial judge improperly rewrote the contract by imposing a sixty-day notice requirement not found in the written agreement, and that the unconscionability finding lacked evidentiary support.
The court reversed the unconscionability finding and the trial court's implicit rewriting of the contract to require sixty days' notice. Written contracts may be modified by oral agreement only if the party asserting modification proves it; the buyer's testimony that he 'felt he had an understanding' was insufficient. The court affirmed the trial court's rejection of the seller's set-off claim.
[1] A court may not rewrite a contract to relieve a party from the hardship of an improvident bargain.
[2] A party alleging modification of a written contract by subsequent oral agreement bears the burden of proving such modification.
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Join FLexlaw to unlock all legal intelligence“Courts may not rewrite a contract to relieve one of the parties from the apparent hardship of an improvident bargain.”
Establishes the fundamental principle that trial courts cannot modify contract terms, even to achieve equity
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Join FLexlaw to unlock all legal intelligenceA seller and buyer entered into a purchase agreement for a condominium unit requiring closing upon ten days' notice from seller. In June 1981, seller'…
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DELL, Judge.
The developer/seller of a condominium appeals from a final judgment in which the trial court found the purchase agreement unconscionable, found the seller had failed to prove a set-off, and ordered return of the buyer’s deposit.
The seller and buyer entered into an agreement for sale of a condominium unit. This agreement provided for closing upon ten days notice by seller to buyer, and contained no clause making buyer’s obligation to close contingent upon financing. In June, 1981, seller’s counsel notified buyer that closing should take place in the near future, and that a Notice to Close would be forthcoming. On October 15,1981, the seller sent the required Notice to Close which scheduled closing for October 29. The buyer failed to appear. On November 3, seller informed buyer that the failure to close constituted a breach of the purchase agreement and that seller had elected to retain the deposit as liquidated damages. The buyer then sued to recover the deposit, alleging an oral extension of closing. The seller raised set-off as an affirmative defense.
The final judgment found that seller should have given buyer at least sixty days notice of closing, to enable the buyer to secure financing. Although a written contract may be modified by a subsequent oral agreement, Pan American Engineering Co. v. Poncho’s Construction Co., 387 So. 2d 1052 (Fla. 5th DCA 1980), the party alleging modification has the burden to prove it, Newkirk Construction Corp. v. Gulf County, 366 So. 2d 813 (Fla. 1st DCA 1979). In his final judgment, the trial judge found that he believed Jenson, the buyer’s president. Jenson merely testified that he felt he had an understanding with seller’s counsel on a closing extension. Such testimony does not suffice to prove a modification. Further, the trial judge did not find that the contract had been modified. He arbitrarily found that the contract should have contained a sixty day notice period rather than a ten day notice period. Courts may not rewrite a contract to relieve one of the parties from the apparent hardship of an improvident bargain. Steiner v. Physicians Protective Trust Fund, 388 So. 2d 1064 (Fla. 3d DCA 1980); see, International Realty Associates, Inc. v. McAdoo, 87 Fla. 1, 99 So. 117 (1924). The court’s finding violates this elementary and long-standing rule of law, and is reversed.
The final judgment also found the contract unconscionable “in that the [seller] cannot deliver on a particular date and yet expect [buyer] to go ahead and borrow money ahead of time waiting for the [seller] to finish the project.” This finding has no evidentiary support in the record and is reversed.
Finally, the seller contends the trial court should have found in its favor on the issue of set-off. The record reflects conflicting evidence on this point, which the trial court could properly resolve in favor of the buyer. We will not disturb this finding.
Accordingly, the final judgment is reversed and the cause remanded for entry of judgment in favor of appellant in the amount of $19,125.00.
REVERSED and REMANDED.
DOWNEY and LETTS, JJ., concur.
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Dickerson Fla., Inc. v. McPEEK, 651 So. 2d 186 (Fla. 4th DCA 1995)…d, 591 So. 2d 174 (Fla.1992). Moreover, a trial court may not rewrite the terms of a contract in an effort to relieve one of the parties from the apparent hardship of an improvident bargain. Bella Vista v. Interior & Exterior Specialities Co., Inc., 436 So. 2d 1107 (Fla. 4th DCA 1983). As such, it is not the role of a trial court to make an otherwise valid contract more reasonable from the standpoint of one of the contracting parties. Medical Center Health Plan v. Brick, 572 So. 2d 548 (Fla. 1st DCA 1990). In…
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Leesburg Cmty. Cancer Ctr. v. Leesburg Reg'l Med. Ctr., Inc., 972 So. 2d 203 (Fla. 5th DCA 2007)…to compete against Real Estate Associates. Additionally, it is not the role of courts to supply terms to a contract in order to protect one of the parties from "an improvident bargain.” Bella Vista, Inc. v. Interior & Exterior Specialties Co., Inc., 436 So. 2d 1107, 1108 (Fla. 4th DCA 1983) (citations omitted).…
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Acquisition Corp. of Am. v. Fed. Deposit Ins., 1991 WL 57905 (S.D. Fla. 1991)…greement are insufficient to raise a genuine issue of fact regarding the existence of a subsequent modification, an allegation as to which Plaintiffs have the burden of proof. See Bella Vista, Inc. v. Interior & Exterior Specialties Co., Inc., 436 So.2d 1107, 1108 (Fla. 4th DCA 1983) (party alleging oral modification to written agreement “has the burden to prove it”); Newkirk Construction Corp. v. Gulf County, 366 So.2d 813, 815 (Fla. 1st DCA 1979) (same); see generally Anderson v. Liberty Lobb…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Int'l Realty Assocs. v. McAdoo, 87 Fla. 1 (Fla. 1924)
- PAN Am. Eng'g Co., Inc. v. Poncho's Constr. Co., 387 So. 2d 1052 (Fla. 5th DCA 1980)
- Newkirk Constr. Corp. v. Gulf Cnty., 366 So. 2d 813 (Fla. 1st DCA 1979)
- Steiner v. Physicians Protective Tr. Fund, 388 So. 2d 1064 (Fla. 3d DCA 1980)