Daily Development for
By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of
Of Counsel: Blackwell Sanders Peper Martin
Kansas City,
prandolph@cctr.umkc.edu
VENDOR/PURCHASER; AGREEMENT; ADDENDA:
Where form contract provided by seller provides on its face that it
states the complete agreement of the parties, the fact that a potential buyer
executes the agreement and delivers it with proposed addenda adding additional
terms will not prevent the seller from signing only the agreement and rejecting
the addenda.
DiMase v. Aquamar 176,
Inc., 2002 WL 1058625 (Fl. A..
Buyers negotiated to acquire two condominium units for a total price in
excess of $1.2 million. They dealt with
the seller's agent, apparently the on-site sales representative, and executed
form documents prepared by the seller.
The form sale agreement included l"integration"
language indicating that it expressed the complete and final intentions of the
parties. It also included language that
stated specifically that carpets and floor coverings were not included in the
sale of the Unit "items such as these will not be included in the Unit
unless specifically provided for in a rider or Schedule to this Agreement
signed by both Buyer and Seller."
The Agreement also provided that the buyers would have fifteen days to avoid
its terms and obtain a return of the deposit.
In addition to the executed form of Agreement, the proposed buyers also
executed and submitted at the same time a proposed Addendum to the agreement
that provided that it would "be deemed a part of, and take precedence over
and supersede any provisions to the contrary contained in, the Agreement." This Addendum provided that Seller would
install, at Seller's cost, marble flooring in the virtually all of the rooms
and bathroom walls. "Marble
design and color to be specified by Buyer."
In addition the buyers executed an Amendment to the purchase agreement
provided that the buyers would pay $30,000 additional for one unit and $50,000
additional for the second unit for exclusive use of certain pool cabanas.
After executing these documents and providing the deposit, the Buyers
returned to their home in
Subsequently, Seller accepted the Agreement, including the amendment, but
refused to accept the Addendum. Seller counterproposed an addendum that provided that Seller would
provide marble floors of the the same quality and
value as shown in one of its model units.
This, note, represented a complete rejection of the provision for marble
walls in the bathroom. Buyers refused
this modification,
concluded that Sellers had not agreed to their proposal, and
demanded the return of the deposit.
Sellers refused, and this suit resulted.
The trial court granted summary judgment for Sellers (yes, Sellers!) and the
Florida Court of Appeals here affirmed the trial court by a split decision.
The court stated that the "terms of the Agreement clearly and
unambiguously express the parties intent to be bound
by its terms. . . . It is undisputed that both parties signed the Agreement.
Further evidencing the parties' intent to entere into
a binding contract upon execution is the severability
clause of the agreement. The severability clause provides, in pertinent part, that any
parts which are unenforceable will be modified or nullified 'in order that the
mutual paramount goal 9that this Agreement is to be enforced to the maximum
extent possible strictly in accordance with its terms) can be achieved.'"
Because the Agreement was complete on its face, the court chose to ignore
the fact that the buyers submitted it together with an Addendum that purported
to add additional terms and to modify the Agreement. As to buyers argument
that there had been no "meeting of the minds," the court responded a
"meeting of the minds" defense succeeds only where the parties have
failed to agree on essential terms of the contract." The court commented that there is no evidence
to explain why the marble provision was an essential term of the contract. The court then went on to say that even if
the marble expectation was logically an essential part of the contract from the
point of view of the buyers, they could not plead a lack of agreement because
the Agreement form that they signed specifically excluded floor coverings and
provided that only an executed addendum could alter its terms. Since the seller never executed the Addendum,
the marble requirement could not be an essential term of the Agreement. (Don't get angry at the editor - he's just
reporting what the court said.)
There is a stinging dissent that refutes everything said in the majority
opinion and is the first bit of language here that makes any sense at all.
Comment 1: We can first discuss, of course, the fact that these were form
consumer instruments drawn by the buyers by the seller's agent, who was
instrumental in filling out the proposed Addendum. For a court to rely so heavily on the
boilerplate self-serving language the Seller inserted into these forms under
these circumstances seems quite inconsistent with what one normally sees in
cases of this type.
Comment 2: But the real problem is the court's ready acceptance that the
execution of two documents constituted the agreement to a contract when the
seller's agent apparently prepared and obtained the buyer's signatures on three
documents. The notion that a requirement
for marble floors and walls is not an "essential term" in a
condominium contract that otherwise provides for no floor covering at all is,
in a word, absurd. In more words, it is
at least as absurd as other parts of the opinion, such as the part that the
buyers somehow agreed that the marble floors were not "essential" because
they signed a contract that stated that floors weren't included.
The quick and obvious answer to the court's argument in this respect is that
the buyers only signed this Agreement because they believe that they would only
be bound by an agreement consisting of all three documents they signed
together.
Comment 3: The court makes no effort to explain why the buyers, assisted by
the Seller's agent, would have executed the Addendum regarding the marble
floors and walls if they had not expected it to be part of the overall
agreement. It included no separate
consideration for this improvement to the units - it provided simply that
seller would provide the marble at seller's expense. Were the buyers simply asking seller to give
them a gift of marble floors and walls? Of course not.
They viewed this as an additional term, covered by the compensation they
were paying for the two units as a whole.
Comment 4: This is one of the worst opinions the editor has seen in some time, and particularly embarrassing because it permits a
Readers are urged to respond, comment, and
argue with the daily development or the editor's comments about it.
Items in the Daily Development section
generally are extracted from the Quarterly Report on Developments in Real
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