Johnson v. Brannon , 23 Fla. Supp. 2d 102 ( 1987 )

OPINION OF THE COURT

HELEN S. HANSEL, Circuit Judge.

FINAL SUMMARY JUDGMENT IN FAVOR OF DEFENDANT, MAGNOLIA MANOR HOME OWNER’S ASSOCIATION, INC, AND PARTIAL SUMMARY JUDGMENT IN FAVOR OF

DEFENDANT, PAUL W. BRANNON, AS TO COUNT II OF PLAINTIFF’S SECOND AMENDED COMPLAINT

THE FOREGOING CAUSE came on to be heard upon defendants’ Motion for Summary Judgment and plaintiffs Motion for Summary Judgment. The depositions and affidavits on file show that there is no genuine issue of any material fact that the former park owner, PAUL W. BRANNON, was the offeror of the mobile home park for sale under Section 723.071(l)(a); (b), Fla. Stat. The Court construes Section 723.071(2), Fla. Stat., to provide for situations in which a third party is the offeror. Therefore, the Court finding that the former park owner, PAUL W. BRANNON, offered the mobile home park for sale within the meaning and intent of Section 723.071(a)(a), Fla. Stat., and that the plaintiff, RICHARD S. JOHNSON, was not the individual who initiated the offer as an offeror for the purchase of the mobile home park, the Court concludes that the defendant, MAGNOLIA MANOR HOME OWNER’S ASSOCIATION, INC., was entitled to the right of first refusal to purchase the mobile home park upon the same terms and conditions as the contract between the park owner, PAUL W. BRANNON, and RICHARD S. JOHNSON.

The assertions by the plaintiff that notification was not properly given by the defendant Home Owner’s Association to the park owner, PAUL W. BRANNON, or that notification of acceptance was not communicated by mail by the Home Owner’s Association to the former park owner, PAUL W. BRANNON, is without merit. The record is uncontested that PAUL W. BRANNON, as park owner, had actual notice of the incorporation of the Home Owner’s Association, knew who its officers were, and in fact notarized the Articles of Incorporation and even encouraged the incorporation of the association to take advantage of the first right of refusal statute. Notification by the Home Owner’s Association of acceptance of sale by mail instead of as apparently was done between counsel who closed the sale is not an objection which is available to a third party purchaser such as the plaintiff. As to both of these points, the Court finds that the law will not require a person to do a useless act and since there is no genuine issue of material fact either as to notice of incorporation of the Home Owner’s Association or acceptance of the right of first refusal by the Home Owner’s Association and its communication to the park owner, PAUL W. BRANNON, of this acceptance, summary judgment as to these points is in order. Therefore, it is

ORDERED AND ADJUDGED AS FOLLOWS:

1. Defendants, PAUL W. BRANNON and MAGNOLIA MANOR HOME OWNER’S ASSOCIATION, INC.’S Motion for Summary Judgment as to Count II, specific performance, be and the same is hereby GRANTED;

2. Defendants’ Motion for Summary Judgment as to Counts I and III be and the same is hereby DENIED;

3. The Court having granted total and final relief as to the defendant, MAGNOLIA MANOR HOME OWNER’S ASSOCIATION, INC., it is ordered that final judgment be and the same is hereby entered for MAGNOLIA MANOR HOME OWNER’S ASSOCIATION, INC. and PAUL W. BRANNON on Count II, specific performance, against the plaintiff, RICHARD S. JOHNSON, and plaintiff, RICHARD S. JOHNSON, as to Count II, shall take nothing by his suit and defendants shall go hence without day;

4. Since this action is brought under Chapter 723, Fla. Stat., and Section 723.068, Fla. Stat., provides for the awarding of a reasonable attorney’s fee to the prevailing party, the Court retains jurisdiction to determine entitlement to defendants, MAGNOLIA MANOR HOME OWNER’S ASSOCIATION, INC. and PAUL W. BRANNON, a reasonable attorney’s fees plus costs of this action to be assessed at a later hearing. The Court specifically retains jurisdiction over the subject matter of this cause and the parties hereto for the entry of an order determining entitlement and, if so, assessing a reasonable attorney’s fee for prevailing on Count II plus defendants’ taxable costs.

DONE AND ORDERED in Chambers at St. Petersburg, Pinellas County, Florida, this 7th day of July, 1987.

IN THE CIRCUIT COURT FOR PINELLAS COUNTY, FLORIDA CIRCUIT CIVIL NO. 84-15124-10

RICHARD S. JOHNSON, Plaintiff, PAUL W. BRANNON, Defendant.

SECOND AMENDED COMPLAINT

Plaintiff sues Defendants, PAUL W. BRANNON and MAGNOLIA MANOR HOME OWNER'S ASSOCIATION, INC., a Florida corporation, and alleges as follows:

COUNT I

1. This is an action for reformation of a written agreement for the sale of real estate located in Pinellas County, Florida.

2. Plaintiff and Defendant, PAUL BRANNON (hereinafter "BRANNON") are residents of Pinellas County, Florida.

3. Defendant, MAGNOLIA MANOR HOME OWNER'S ASSOCIATION, INC. (hereinafter "ASSOCIATION"), is a Florida corporation which maintains its principal place of business in Pinellas County, Florida.

4. On or about October 25, 1984, Plaintiff made a bona fide offer to purchase Magnolia Manor then owned by Defendant, BRANNON, which Defendant, BRANNON, intended to consider. At said time. Defendant, BRANNON, had never offered Magnolia Manor for sale at any price, terms or conditions.

5. All conditions precedent to the institution of this action have been performed, have occurred or have been waived.

6. On or about October 25, 1984, Plaintiff and Defendant, BRANNON, entered into a written agreement, a copy of which is attached hereto as Exhibit "A", whereby Plaintiff agreed to purchase from Defendant, BRANNON, and Defendant, BRANNON, agreed to sell to Plaintiff, certain real property located at approximately 4190 - 71st Street North, St. Petersburg, Florida 33709, and known as Magnolia Manor Mobile Home Park, toqether with all improvements, furniture, fixtures, furnishings and equipment used in the construction, operation and maintenance of the mobile home park, and an assignment of rents and leases incident thereto.

7. At the time at which they entered into the agreement, both Plaintiff and Defendant, BRANNON, intended that by virtue of the execution of this agreement, Plaintiff would be purchasing, and Defendant, BRANNON, would be selling the entire parcel known as Magnolia Manor Mobile Home Park, together with .the aforementioned appurtenances incident thereto.

8. However, due to a mutual mistake of Plaintiff and Defendant, BRANNON, the description of the property, as set forth in the agreement, failed to express the true agreement of Plaintiff and Defendant, BRANNON, in that the description failed to encompass a material portion of the parcel known as Magnolia Manor Mobile Home Park.

9. The description of the property which, at the time of the execution of the agreement, Plaintiff intended to purchase and Defendant, BRANNON, intended to sell, is as follows:

The North 3/4 of the Northeast 1/4 of the Southeást 1/4 of the Southwest 1/4 LESS the East 30' for the Street. Also the Southeast 1/4 of the Northeast 1/4 of the Southwest 1/4 LESS the east 396' all being in Section 6, Township 31 South, Range 16 East, together with improvements thereon? and together with all furnishings, equipment and fixtures used in the construction, operation and maintenance of the mobile home park, and an assignment of rents and leases incident thereto.

10. Plaintiff lacks an adequate remedy at law. WHEREFORE, Plaintiff prays that the Court reform the attached agreement by providing the property description which reflects the true agreement of Plaintiff and Defendant, BRANNON, as set forth in Paragraph 9 hereof, and awarding Plaintiff the costs of this action.

COUNT XI

11. This is an action for specific performance of a written agreement for the sale of real estate located in Pinellas County, Florida.

12. Plaintiff realleges the allegations of Count I, as though fully set forth herein.

13. On November 30, 1984, pursuant to the terms of the agreement, Plaintiff appeared at the offices of Defendant's, BRANNON, attorney for the closing of this agreement, and was fully ready, willing and able to tender the funds and other items necessary to close, and Plaintiff did in fact tender said funds and other iLems.

14. At the closing. Defendant, BRANNON, failed and refused, and Defendant, BRANNON, continues to fail and refuse to perform his obligations under the agreement by conveying the subject property to Plaintiff.

15. On December 5, 1984, Defendant, BRANNON, conveyed the subject property to Defendant, ASSOCIATION, A copy of the deed evidencing this conveyance is attached hereto as Exhibit "B".

16. By virtue of a letter dated November 26, 1984, a copy of which is attached hereto as Exhibit "C", Defendant, ASSOCIATION, was on actual notice with regard to the agreement between Plaintiff and Defendant, BRANNON, and with regard to the fact that Plaintiff was ready, willing and able, and fully intended to close on the agreement.

17. Plaintiff lacks an adequate remedy at law.

WHEREFORE, Plaintiff prays that the Court enter its judgment for specific performance of the agreement, as reformed pursuant to Count I herein, and

A. Ordering Defendant, ASSOCIATION, to convey the subject property to Plaintiff, or in the alternative, ordering Defendant, ASSOCIATION, to convey the property to Defendant, BRANNON, and in turn ordering Defendant, BRANNON, to convey the property to Plaintiff; and

B. Awarding Plaintiff the costs of this action and such further relief as the Court may deem just and proper.

COUNT III

18. This is an action for damages which exceed Five Thousand and No/100 Dollars ($5,000.00).

19. Plaintiff realleges paragraphs 2 through 7 inclusive of Count I, and paragraphs 13 through 16 inclusive of Count II, as though all of which was fully set forth herein.

20. In addition to his contractual obligation to convey the subject property to Plaintiff, Defendant, BRANNON, had a duty incident to the agreement, to deal with Plaintiff in the utmost of good faith.

21. Defendant, BRANNON, breached his duty to deal with Plaintiff in the utmost of good faith in that:

A. During the negotiations leading to the execution of the agreement, Defendant, BRANNON, falsely advised Plaintiff that Defendant, BRANNON, was not aware of the existence of an incorporated homeowners association?

B. During said negotiations. Defendant, BRANNON, failed to advise Plaintiff that Defendant, BRANNON, was involved in negotiations with the homeowners association for the potential sale of the property? and

C. Defendant, BRANNON, entered into the agreement with Plaintiff as a means of prompting the homeowners association to come forth with a bona fide offer to purchase the property.

22. Defendant's, BRANNON, breach of his duty of good faith was willful, wanton and was undertaken with malicious and total disregard for Plaintiff's rights.

23. Plaintiff has . incurred damages as a direct result of Defendant's, BRANNON, failure and refusal to convey the property to Plaintiff, which damages include, but are not limited to:

A. The earnest money which Plaintiff deposited with the escrow agent designated in the contract?

B. The difference between the contract price and the market value of the property? and

C. The loss of income and profits which would have accrued to Plaintiff from the operation of the mobile home park located on the property.

WHEREFORE, Plaintiff demands judgment against Defendant, BRANNON, for damages, both compensatory and punitive, together with interest, costs and such further relief as the Court may deem just and proper.

I HEREBY CERTIFY that a copy of the foregoing has been furnished by U. S. mail to John T. Allen, Jr., Esquire, John T. Allen, P.A., 4508 Central Avenue, St. Petersburg, Florida 33711 this ___l_$^iay of July, 1985. A

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IN THE CIRCUIT COURT FOR PINELLAS COUNTY, FLORIDA CIRCUIT CIVIL NO. 84-15124-10

RICHARD S. JOHNSON, Plaintiff, vs. PAUL W. BRANNON, Defendant. /

ANSWER AND DEFENSES TO SECOND AMENDED COMPLAINT

The defendants, PAUL W. BRANNON and MAGNOLIA MANOR HOME OWNER'S ASSOCIATION, INC., a Florida corporation, as Answer and Defenses to plaintiff's Second Amended Complaint, say:

FIRST DEFENSE (As to Count I)

1. Defendants admit the allegations of paragraph 1.

2. Defendants admit the allegations of paragraph 2.

3. Defendants admit the allegations of paragraph 3.

4. Defendants deny the allegations of paragraph 4.

5. Defendants deny the allegations of paragraph 5.

6. Defendants deny the allegations of paragraph 6.

7. Defendants deny the allegations of paragraph 7.

8. Defendants deny the allegations of paragraph 8.

9. Defendants deny the allegations of paragraph 9.

10. Defendants deny the allegations of paragraph 10.

(As to Count II)

11. Defendants admit the allegations of paragraph 11.

12. Defendants reallege and reaver their answer and defenses to all of the paragraphs of Count I of the Second Amended Complaint.

13. Defendants deny the allegations of paragraph 13.

14. Defendants deny the allegations of paragraph 14.

15. Defendants deny the allegations"of paragraph 15.

Defendants deny the allegations of paragraph 16. 16.

17. Defendants deny the allegations of paragraph 17.

(As to Count III)

18. Defendants deny the allegations of paragraph 18.

19. Defendants reallege and reaver their answer and defenses to paragraphs 2 through 7, inclusive, of Count I, and paragraphs 13 through 16, inclusive, of Count II, of plaintiff's Second Amended Complaint.

20. Defendants deny the allegations of paragraph 20.

21. Defendants deny the allegations of paragraph 21 and each subparagraph (a through c, inclusive) of said paragraph.

22. Defendants deny the allegations of-paragraph 22.

23. Defendants deny the allegations of paragraph 23 and each subparagraph (a through c, inclusive) of said paragraph.

SECOND DEFENSE (As to All Counts)

Defendants say that the defendant, PAUL W. BRANNON, offered the mobile home park for sale and was required as a condition precedent under Section 723.071, Fla.Stat., to have offered it to the defendant. Home Owner's Association, or its predecessor and, therefore, such action constitutes a complete defense as to all actions brought in this cause.

THIRD DEFENSE (As to All Counts)

Defendants say that the defendant, PAUL W. BRANNON, was intoxicated at the time that he allegedly entered into the contract with the plaintiff, RICHARD S. JOHNSON, and therefore, the contract is voidable at defendant's option or in the alternative void due to the lack of capacity of PAUL W. BRANNON to contract.

DEMAND FOR JURY TRIAL

The defendants demand trial by jury on all issues raised by Counts I, II and III.

I HEREBY CERTIFY that a copy of the foregoing has been furnished by mail to CHRISTOPHER C. FERGUSON, ESQUIRE, of Riden, Watson & Goldstein, P.A., City Center, North Tower, 100 Second Avenue South, Suite 400, St. Petersburg, FL 33701, Attorney for Plaintiff, this 23rd day of December, 1985.

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ADDENDUM #2

Sellen Paul Brannon

Buyeri Richard S Johnson &n Assignors

For in consideration of certain furniture not being included in the transfer of assets of Magnolia Manor it is agreed to by Paul Brannon that the $300,000.00 deposit may be reduced to $880,000.00 and the sale of the park be reduced by the the sane $20,000.00 making the sale price $1,280,000.00;

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U 5890 nr 836

Subject to that certain Financing Stetaacnt froa Paul w. Brannon and Jana A. Brannon, to National Trust Bank of Florida, filed August 27, 1*79, in O.R. Book 4904, Paga 172, Public Records of Pinalias Ccunty, Florida. A CCNTI NU AT ION OP SAXO FINANCING 8TATXMBNT recordad in O.R. Book ÍS03, paga 193$, Public Records of Pinalias County, Florida, which debt and aortgaga the Grants*(s) aesua* and agre* to pay.

law omu.s

STOLIU, LOCAN, CONKLIN A VKRONA, P.A.

LOUIS E STOLBA WALT LOGAN RAYMOND C. 'CHET' CONKLIN H JAMES LENTE

40* PAEAOENA AVENUE SOUTH POST OFFICE BOX 417)4 ST PETERSBURG FLOFIOA 11)41

(•IS) )47-l«»4

OFCOUNSEL

November 26, 1984

Magnolia Manor Residents Association, Inc. (CERTIFIED)

4190. 71st Street North St. 'Petersburg, FL 33709

Re: Contract to sell Magnolia Manor to Richard S. Johnson

Gentlemen:

Please be advised that this office represents Mr. Richard S. Johnson incident to the above referenced matter.

On October 25, 1984, Mr. Johnson entered into a written contract, a copy of which is enclosed herein, for the purchase of Magnolia Manor from Mr. Paul Brannon. The closing on this contract is scheduled for November 30, 1984.

Subsequent to the execution of the contract, Mr. Brannon has indicated that that due to an assertion by the Association of a right of first refusal, he will be unable to close on the contract.

Based on my review of applicable Florida law, it appears that the Association has no such right, and Mr. Johnson fully intends to close on November 30.

Therefore, this letter is directed to the Association for the following purposes:

1. To put the Association on actual notice of the pendency of Mr. Johnson's contract and of the fact that he is ready, willing and able, and fully intends to close on November 30; and

2. To demand that the Association immediately cease and abandon its efforts to prevent the November 30 closing. If such efforts continue, Mr. Johnson will not hesitate to take appropriate legal action to protect his rights.

Magnolia Manor Residents Assoc., November 26, 1984, Page Two

I have forwarded a copy of this letter to Attorney John T. Allen, ' Esq., as it is my understanding that he represents the Association in this matter.

Sincerely,

STOLBA, LOGAN, CONKLIN & VERONA, P.A.

JAY a. VERONA

Jay B. Verona

JBV/mt

cc: John T. Allen, Jr., Esq.

William H. Fleece, Esq.

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ADDENDUM

To Contract for Sale and Purchase of Magnolia Manor

Sellers: Paul W. Brannon

Buyer: Richard S. Johnson and Assignors

This sale is contingent upon the following:

1. Subject to Buyers' CPA review and approval of all income and expense items,.

2. Subject to inspection of the real and personal property included in the sale.

3. Verification and approval of the utility charges.

4. Verification and approval of the real estate taxes.

5. Subject to Buyers' attorney review and approval.

6. Seller providing current termite inspection to reflect no live infestation of subterranean or dry termites with all repairs being the responsibility of the Seller on all structures owned by Paul Brannon within the Park to Include house, garage and clubhouse.

7. That all 128 lots have health and rehabilitative service permits.

8. That model mobile home and contents and all its attachments be transferred to the Buyer, if this;.home on lot 70 is not .transferred tfaeá price * oft

9. That lawn maintenance is excluded from Park s obligation to tenants. * *. (continuation) of park will be reduced bv $24,000.00 vhejñ

ITEMS TO REMAIN WITH THE SALE OF THE PROPERTY AS PER ATTACHtD DEPRECIATION SCHEDULE

Seller to pay for title insurance and documentary stamps.

Seller to provide new survey and should it not agree with the legal description. Buyer reserves right to cancel this Contract and receive a full refund of his deposit. •

Seller may correct any discrepancies in the survey at his expense.

Seller understands that Buyer is a Florida Registered Real Estate Salesman and is buying for his own account.

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