Opinion
Case No. 3D04-1093.
Opinion filed August 10, 2005.
An Appeal from the Circuit Court for Miami-Dade County, Jeri B. Cohen, Judge, Lower Tribunal No. 03-24929.
Hustead Magolnick, P.A., and Robert M. Hustead, for appellant.
Joseph, Jack Miranda, P.A., and Helen Miranda, Stephanie E. Demos and Vanessa T. Deans, for appellee.
Before COPE, C.J., SHEPHERD, J., and SCHWARTZ, Senior Judge.
Redland Estates, Inc., appeals the dismissal of an amended complaint against Sandra Lynn with prejudice. After a careful review of the amended complaint and taking the allegations therein most favorably to appellant as we are required, Williams v. Davanzo, 891 So. 2d 613, 1032 (Fla. 3d DCA 2005), we affirm the decision of the trial court.
I. FACTS
This case arises out of a failed real estate transaction in which Redland Village Country Club, Inc., the predecessor to the appellant, Redland Estates, Inc. (Redland), entered into an agreement to purchase approximately 100 acres of undeveloped property in Miami-Dade County from Francis J. Dirico for an original purchase price of $3.8 million dollars. Both Redland and Dirico were represented by counsel in the transaction. In accordance with the terms of the agreement, Redland deposited $200,000 in escrow with Sandra Lynn, Esq., Dirico's counsel. The agreement provided that the deposit would be paid toward the purchase price at closing. In an addendum to the agreement, Redland was afforded the opportunity of obtaining a sixty-day extension of the agreed closing date if needed for due diligence purposes, provided that it paid an additional "non-refundable deposit" of $38,000 into escrow. Redland took advantage of this option. Thus, the closing date was extended to April 20, 2003.
As the amended closing date approached, Redland sought a second extension of the closing date. After negotiations, the parties amended their agreement as follows:
1. Paragraph 2 Purchase Price: is hereby modified to increase the Purchase Price to $4,300,000.00.
2. The original deposit of $200,000.00 plus the additional deposit of $38,000 shall be release [sic] and paid to the Seller as consideration for this extension. A non-refundable deposit of $250,000.00 shall [be] due upon the signing of this Addendum. The total Non-refundable deposit held in escrow for this contract shall be $250,000.00.
3. The closing for this transaction shall be on or before June 20, 2003. All conditions and contingencies in respect to the buyer's obligation to close have been met or waived, including, but not limited to, financing and due diligence investigations.
4. The real estate commission paid under this contract shall be based on the original purchase price of $3,800,000.00.
In accordance with the terms of this addendum, Lynn disbursed $238,000 to Dirico. Redland deposited an additional $250,000 in escrow with Lynn. The closing date was thus extended to June 20, 2003.
Thereafter, Redland sought and received a third extension of the closing date. The negotiations for this extension resulted in the following terms:
1. Paragraph 2 Purchase Price: is hereby modified to increase the Purchase Price to $4,500,000.00.
2. An additional Non-refundable deposit of $200,000.00 shall [be] due and payable in equal monthly payment[s] of $50,000.00 beginning June 27, 2003 with subsequent payments due and payable on July 20, 2003, August 20, 2003, and September 20, 2003. All monthly deposit money shall be released and paid directly to the Seller, Francis J. Dirico. Any failure of the buyer to make timely payment of each additional required deposits shall be a default of the contract by the Buyer under paragraph 10 of the contract.
3. The Non-refundable Deposit held by Turner Lynn, PA as escrow agent, in the amount of $250,000.00 shall be released to the Seller immediately, as payment for the extension of this contract.
4. All monthly deposit payments made shall be a credit due to the buyer at the time of closing.
5. The Seller shall have the right to market the property and to enter into [a] back-up contract for the sale of the subject property. Any Back-up contract entered into by the Seller shall contain a "confidentiality clause" to prohibit any disclosure of the terms or conditions of the contract.
6. The closing for this transaction shall be on or before October 20, 2003. The property shall be sold "AS IS" on that date with no outstanding contingencies, conditions or requirements other than the delivery of the attached Warranty Deed to the Buyer and payment of all funds due to the Seller in Cash.
7. All brokerage commissions shall be based on the original purchase price of $3,800,000.
Pursuant to the terms of this amendment, Lynn disbursed $250,000 to Dirico, and Redland made the additional $200,000 in deposits as they came due. Presumably, these deposits have been received by Dirico. Prior to the extended closing date of October 20, 2003, Redland demanded to close, but Dirico informed Redland that it would not receive credit at closing for the sums totaling $488,000 which had been disbursed to Dirico by Lynn pursuant to the terms of the two addenda. Redland then refused to close and sued Dirico for specific performance. In an amended complaint, Redland joined Lynn, alleging conversion, breach of fiduciary duty, statutory theft, and statutory misrepresentation under the Florida Deceptive and Unfair Trade Practices Act. Although the amended complaint constitutes Redland's first attempt to plead against Lynn, the court nevertheless granted the dismissal with prejudice on the basis that no version of the facts supported a cause of action by Redland against Lynn. We agree and affirm.
II. DISCUSSION
It is extraordinarily rare that a complaint is dismissed with prejudice on the first pleading. However, where there is no version of the facts which will support a claim against the defendant, a dismissal with prejudice is appropriate. See MidFlorida Schools Fed'l Credit Union v. Fansler, 404 So. 2d 1178, 1180 (Fla. 2d DCA 1981) (grant of motion to dismiss proper if the allegations in the pleading attacked show with certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of the claim). In the amended complaint, Redland alleges that despite the express language of the addenda to the agreement, it was "understood that all deposits would continue to be applicable to the purchase price and that their early release and non-refundability, together with the increase in purchase price would be the consideration for the extension." (emphasis added). However, the agreements between the parties and addenda thereto, which are attached to the amended complaint, expressly contradict Redland's position. There is no other way for them to be read. Thus, it is not Redland's subjective intent that is controlling, but rather the external signs exchanged between the parties when, as here, those external signs are unambiguous. All-Dixie Ins. Agency, Inc. v. Moffatt, 212 So. 2d 347 (Fla. 3d DCA 1968) (noting that court lacks authority to rewrite contract terms to give them meaning other than the one expressed where parties selected contract language and language is clear and unambiguous). The trial court properly dismissed the amended complaint with prejudice.
We are guided to our result by Jackson v. Inv. Corp. of Palm Beach County, 585 So. 2d 949 (Fla. 4th DCA 1991). In Jackson, appellee, a dog track owner, submitted an ad to the Miami Herald for its Pic-6 Jackpot that read, "Guaranteed Jackpot $25,000 Must Go Tonight." The newspaper mistook the dollar sign with only one slash mark to be the number eight and thus, the ad offered a jackpot of $825,000. Jackson won the prize, and sued for the balance after the dog track offered him $25,000. The district court held that the fact that the dog track never intended to offer such a huge jackpot was no defense. The court stated, "The point is that appellee's subjective intent was not material in determining what the contract was between the parties."Jackson, 585 So. 2d at 950 (relying upon 1 Williston on Contracts, § 94, 339-340, "[T]he test of the true interpretation of an offer or acceptance is not what the party making it thought it meant or intended it to mean, but what a reasonable person in the position of the parties would have thought it meant."). See also Gendzier v. Bielecki, 97 So. 2d 604, 608 (Fla. 1957) (quoting Justice Oliver Wendell Holmes, "The making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs-not on the parties having meant the same thing but on their having said the same thing."). In this case, Redland's subjective intent of what it thought the contract and addenda included cannot be used to determine the terms of the contract with Dirico. It is not our function to vary the express, unambiguous terms of a written agreement. See All-Dixie, 212 So. 2d at 351.
Affirmed.
SCHWARTZ, Senior Judge, concurs.
In its amended complaint, plaintiff-appellant Redland Estates, Inc. added Sandra Lynn as a defendant. The trial court dismissed the amended complaint with prejudice as to defendant-appellee Lynn. On appeal, Redland says it should have been granted leave to amend with respect to defendant Lynn.
The record does not contain any indication that Redland Estates, Inc. raised in the trial court the argument it now presents on appeal, namely, that it desired leave to amend its allegations as to appellee Sandra Lynn. Further, notwithstanding the dismissal with prejudice, Redland Estates filed a second amended complaint. As to appellee Lynn, the allegations of the second amended complaint were identical to the allegations of the first amended complaint.
Since the record does not establish that the trial court was ever informed that Redland Estates desired to amend with regard to Lynn, and since an amendment was actually filed which contained no new or different allegations, no error has been demonstrated and affirmance is in order.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.