5D03-3404, Vs

IN THE SUPREME COURT OF THE STATE OF FLORIDA

NORMA ENGLISH,

Plaintiff/Petitioner, Case No.:

Lower Tribunal No.: 5D03-3404, vs. 5D03-3671

MICHAEL S. MONTGOMERY and LAURIE E. MONTGOMERY,

Defendants/Respondents.

PETITIONER’S JURISDICTIONAL BRIEF

On Review from the District Court of Appeal, Fifth District, State of Florida

JON E. KANE Florida Bar Number 814202 CHAD K. ALVARO Florida Bar Number 621412 MATEER & HARBERT, P.A. 225 East Robinson Street, Suite 600 Post Office Box 2854 Orlando, Florida 32802-2854 Telephone: (407) 425-9044 Facsimile: (407) 423-2016

Attorneys for Plaintiff/Petitioner, NORMA ENGLISH

T:\BRIEFS\Briefs pdf'd\05-1186_JurisIni.doc

TABLE OF CONTENTS

TABLE OF CONTENTS…………………………………………………………i

PRELIMINARY JURISDICTIONAL STATEMENT…………………………1

STATEMENT OF THE CASE AND OF THE FACTS...... 1

I. Nature of the Case ...... 1

II. Course of the Proceedings...... 4

III. Disposition in the Lower Tribunal...... 4

QUESTION PRESENTED AND SUMMARY OF ARGUMENT

ARGUMENT...... 7

I. THE DECISION OF THE FIFTH DISTRICT COURT OF APPEAL DIRECTLY AND EXPRESSLY CONFLICTS WITH THE SUPREME COURT’S DECISION IN DAVID v. RICHMAN, AND ALL OTHER DISTRICT AND SUPREME COURT CASES WHICH STAND FOR THE PROPOSITION THAT A CONTRACT IS FORMED WHEN THE PARTIES HAVE AGREED TO THE ESSENTIAL TERMS OF THE CONTRACT.

A. David v. Richman.

II. STRICT APPLICATION OF THE “MIRROR IMAGE RULE” PRODUCES HARSH AND INEQUITABLE RESULTS

CONCLUSION...... 10

TABLE OF CITATIONS

CASES

City of Miami v. Case, 882 So. 2d 398 (Fla. 3rd DCA 2004) ...... 9

David v. Richman, 568 So. 2d 922 (Fla. 1990)...... 6

Gresser v. Hotzler, 604 N.W. 2d 379 (Minn. 2000) ...... 8

Hallmark Builders, Inc. v. Hickory Lakes of Brandon, 444 So. 2d 1047 (Fla. 2nd DCA 1984) ...... 10

Hoyt R. Matise Co. v. Zurn, 754 F. 2d 560, 566 (5th Cir. 1985)...... 8

Northwest Television Club v. Gross Seattle, Inc., 634 P. 2d 837, 840 (Wash. 1981)...... 8

Raydon Exploration, Inc. v. Ladd, 902 F. 2d 1496, 1500 (10th Cir. 1990) ...... 8

Sorocka v. Severe, 858 So. 2d 388 (Fla. 3rd DCA 2003) ...... 9

ii PRELIMINARY JURISDICTIONAL STATEMENT

Petitioner seeks to invoke this Court’s discretionary jurisdiction to review the decision of the Fifth District Court of Appeal in the above styled case pursuant to Rule 9.030(a)(2)(A)(iv), Florida Rules of Appellate Procedure.

STATEMENT OF THE CASE AND OF THE FACTS

I. NATURE OF THE CASE

This case concerns the purchase and sale of residential, non-homestead real property (the “Property”) located in Orange County, Florida. The terms and conditions of the sale of the Property were embodied in the standard written

Contract for Purchase and Sale promulgated by the Florida Association of Realtors and the Florida Bar (Version – FAR/BAR 5, revised 8/98)(“FAR/BAR”) and signed by both the parties to the lawsuit filed in the Orange County Circuit Court.

On November, 15, 2001, Plaintiff/Petitioner, NORMA ENGLISH (“Ms.

English”) submitted an offer to Defendants/Respondents, MICHAEL S.

MONTGOMERY and LAURIE E. MONTGOMERY (the “Montgomerys”) on a standard FAR/BAR contract. This offer set forth the terms of an “as is” purchase of the Property for $272,000.00 and was fully executed by Ms. English. The offer also provided for the inclusion of sundry items of personal property in the sale.

Although an “As Is” Rider was not attached to the documents, the contract was designated “as is” by the checking of a box contained in the contract terms.

1 The Montgomerys picked up the documents from the office of Ms. English’s real estate agent (“Ms. Brown”) on that day (Thursday, November 15, 2001), and executed the documents that same day.

Ms. Brown first viewed the Montgomery’s submittal sometime between

2:30 and 3:00pm on Friday, November 16, 2001. The documents as tendered by the Montgomerys contained certain minor changes: two items of de minimis value

(paving stones and a fireplace screen) were deleted from the “personal property” section of the contract, Latent Defects and Building Inspections provisions were struck through from the Real Estate Disclosure form, and an “As Is” Rider was attached. Each change had been initialed by the Montgomerys, and the “As Is”

Rider was executed.

On Friday, November 16, 2001, Ms. Brown delivered the executed documents to English. She informed Ms. English that the Montgomerys had accepted her offer and directed her to initial the changes that they had made to the

Contract.1 Ms. English initialed the deletion of the Latent Defects and Building

1 Ms. English testified that she believed that, as of November 16, 2001, the Montgomerys were bound by the contact that they had executed. As such, in the trial court proceedings, and by her appeal to the Fifth District Court of Appeal, Ms. English argued that the executed documents received from the Montgomerys as of November 16, 2001 constituted a legally binding acceptance of her offer, or in the alternative, constituted a counteroffer which Ms. English accepted. See infra. The Fifth District Court of Appeals found that the contract received by Ms. Brown constituted a counteroffer. See Opinion of the Fifth District Court of Appeals

2 Inspection provisions, and signed the “As Is” Rider, but inadvertently failed to initial the deletions of the paving stones and fireplace screen, which had a de minimus value.2

On Monday, November 19, 2001, Ms. Brown faxed the final documents (the

“Contract”) to Edward A. Kerben, Esquire (“Mr. Kerben”), the Montgomerys’ attorney and closing agent.3

Mr. Montgomery testified that he knew, as of Tuesday, November 20, 2001, that Ms. English had tendered the Contract in substantially the same form, and under the same essential terms, which was received by his attorney, Mr. Kerben, on November 19, 2001.

On November 21, 2001 (two days after receipt of the executed and initialed

Contract by the Montgomerys’ agent, and one day after Mr. Montgomery admitted having knowledge that the Contract was received), the Montgomerys entered into

dated April 8, 2005 (“Opinion”) at Tab “A” to Appendix to Petitioner’s Jurisdictional Brief filed herein. 2 The testimony at trial was that the monetary value of the stones and screen was roughly about $100.00. Moreover, Ms. English never sought enforcement of the contract to include those items of personal property that the Montgomerys deleted from the contract. To the contrary, both she and her realtor testified that those items “did not matter to her” – they were not essential or material terms. At trial, the jury likewise concluded that the deletion of those items was not an essential or material term of the Contract. 3 On the contract faxed to Mr. Kerben, the buyer’s name, which formerly read “Norma English Revocable Trust,” was struck through to read “Norma English.” Norma English is the trustee and sole beneficiary of the Norma English Revocable Trust.

3 another contract for the purchase and sale of the Property with a neighbor, Dr.

Peter Mayotte, for at least $13,000.00 more than that offered by Ms. English, or approximately $285,000.00. On that same day, Mr. Montgomery faxed a letter to

Ms. Brown “withdrawing the offer” to sell the Property.

II. COURSE OF THE PROCEEDINGS

This case was tried before a jury that was charged with determining whether the parties had agreed to the essential terms of the agreement such that an enforceable contract was created. The jury determined that the parties had agreed to the essential terms of the Contract, and that any uncertainty in the Contract related to nonessential matters. The trial court upheld the jury’s findings, and denied the Montgomery’s Motion for New Trial.

The jury found that an enforceable contract had indeed been created because the parties had agreed to the essential terms of the Contract, and regardless of any uncertainty resulting from Ms. English neglecting to initial the Montgomery’s personal property deletions. The judge in the trial proceedings determined that Ms.

English was ready, willing and able to perform the contract, and accordingly, awarded Ms. English specific performance.

III. DISPOSITION IN THE LOWER TRIBUNAL

The Montgomerys timely filed their appeal of the trial court’s Order

Denying Motion for Summary Judgment entered on March 31, 2003, Order

4 Denying Motion for New Trial entered on May 22, 2003 and Final Judgment entered September 3, 2003.

The Fifth District Court of Appeal held that Florida employs the “mirror image rule” with respect to contracts.4 Applying the “mirror image rule” to the undisputed facts, the District Court held that the parties failed to reach an agreement on all of the terms of the contact, and therefore, no enforceable contract was created. In its opinion, the District Court did not find that the deletion of the fireplace screen and stones was an essential or material term of the Contract.

A fair reading of the Opinion leads to the unavoidable conclusion that the appellate court’s determination that an enforceable contract was not created was based solely on the fact that Ms. English neglected to initial the Montgomery’s deletion of the personal property items.5 That being the case, The Fifth District

Court of Appeal’s opinion, reversing the jury’s verdict, leads to a particularly harsh and inequitable result. It invalidates a $272,000.00 contract for the sale of real property, declaring it ab initio simply because Ms. English neglected to initial the deletion of the fireplace screen and paving stones (items the jury determined were not essential).

4 See Opinion of the Fifth District Court of Appeals dated April 8, 2005 (“Opinion”) at Tab “A” to Appendix to Petitioner’s Jurisdictional Brief filed herein. 5 “Specifically, English did not initial the changes set forth by the Montgomerys in the personal property section of the document or explicitly confirm her acceptance of those terms by cover letter or otherwise.” Opinion at page 3.

5 Finally, the Opinion of the Fifth District Court of Appeal does not find that the uncertain terms were, in fact, essential. The Court implicitly accepts the jury’s finding that the terms were nonessential and immaterial, yet ultimately found that uncertainty regarding immaterial terms can still preclude formation of a contract.

QUESTION PRESENTED AND SUMMARY OF ARGUMENT

Ms. English hopes to present the following issue to the Court: Does the

“mirror image rule” preclude formation of a contract where the parties have agreed to the essential terms of a contract?

The “mirror image rule”, whatever its place in Florida contract law, is at the very least tempered by the equally well-established maxim that an enforceable contract is created when the parties thereto agree to its essential terms. Application of this rule necessarily calls into question whether the terms agreed to (or left open) are essential or material in light of the ends of the transaction.

In the present case, Ms. English argued, and the jury (and trial court) agreed, that the parties had agreed to the essential terms of the contract for the sale of the real property, and that Ms. English’s failure to initial the Montgomerys’ deletions of certain items of personal property did not preclude formation of the contract. It found that uncertainty regarding immaterial terms of a contract will not defeat the contract where the parties have agreed to its essential terms. The parties had mutually assented to the essential and material terms despite the fact that the offer

6 and acceptance were not “mirror images” of one another.

ARGUMENT

The decision of the Fifth District Court of Appeal, by its strict application of the “mirror image rule”, expressly and directly conflicts with David v. Richman.6

In that case, a seller signed contract for purchase and sale prepared by a realtor which was blank except for the names of the parties. The contract was later transmitted to the buyer, who also executed the contract. At or after the buyer executed the contract, the realtor inserted a number of material terms. However, a first mortgage on the property was not addressed by the contract. Additionally, the document appeared to call for purchase money financing, while the parties had agreed to an all cash closing. The trial court found that the there was no meeting of the minds as to all the material elements of the contract, and that therefore, no contract had been created.

The appellate and Supreme Court both cited the finding of the trial court with approval. The Florida Supreme Court reaffirmed the oft-cited rule that

while a meeting of the minds may not be necessary as to every term

6 568 So. 2d 922 (Fla. 1990).

7 for a contract to be formed, mutual assent is certainly necessary as to an essential term of the contract.7

The Court, in that case, then examined whether the parties had agreed to the material terms of the contract, ultimately determining that they had not.

David v. Richman, by its recitation of the above rule, conflicts with the decision of the Fifth District Court of Appeal in this case where the jury found that the parties had reached a meeting of the minds as to the essential terms of the contract. The appellate court reversed, finding that the “mirror image rule” precluded formation of a contract between the parties. The contradiction is clear: if the parties have indeed agreed to the material and essential terms of the contract, how can the “mirror image rule” invalidate that contract?8

7 David at 924 citing Blackhawk Heating & Plumbing Co. v. Data Lease Financial Corp, 302 So. 2d 404, 408 (Fla. 1974); Restatement (Second) of Contracts, §33, Comment a. (1981)(Where the parties have intended to conclude a bargain, uncertainty as to incidental or collateral matters is seldom fatal to the existence of the contract). 8 The courts of other states have answered. The “mirror image rule” may be the general rule of law, however, it yields where the parties have merely failed to agree as to immaterial terms, and a contract can nonetheless be formed. See, e.g., Gresser v. Hotzler, 604 N.W. 2d 379 (Minn. 2000)(recognizing exception to “mirror image rule” for immaterial variations and noting that many modern courts have relaxed the mirror image rule, holding that only an acceptance that differs materially from the terms of the original offer prevents contract formation). The Gresser Court cites to cases under Oklahoma, Texas and Washington law, all of which relax application of the “mirror-image rule” where immaterial changes have been made in the context of an offer or acceptance. See Raydon Exploration, Inc. v. Ladd, 902 F. 2d 1496, 1500 (10th Cir. 1990); Hoyt R. Matise Co. v. Zurn, 754 F. 2d 560, 566 (5th Cir. 1985); Northwest Television Club v. Gross Seattle, Inc., 634 P. 2d 837, 840 (Wash. 1981).

8 The citation to the rule set forth by the Supreme Court in David (and the numerous citations to the same rule by the district courts of appeal of this state)9, necessarily calls into question whether a term is essential or material in relation to the agreement purportedly created by the parties. In the instant case before the

Fifth District Court of Appeal, the jury determined that the parties had agreed to the material terms of the contract. The appellate court nonetheless applied the

“mirror image rule,” thereby overriding the jury’s determination that the parties had reached mutual assent as to the essential terms of the contract. As such, the opinion of the Fifth District Court of Appeal directly conflicts with every decision rendered in this state which evaluates the materiality of a term of a contract.

The District Court’s strict application of the “mirror image rule” makes any further inquiry into the materiality of a term irrelevant, because it disregards the need to determine whether a specific term is essential.10 Ms. English argues that such a strict application. If the parties have agreed to its essential terms, an enforceable contract is created.

II. STRICT APPLICATION OF THE “MIRROR IMAGE RULE” PRODUCES HARSH AND INEQUITABLE RESULTS.

9 See, e.g., City of Miami v. Case, 882 So. 2d 398 (Fla. 3rd DCA 2004)(legally enforceable agreement, whether oral or in writing, requires that the parties must have had a meeting of the minds, i.e., an agreement as to its essential terms). 10 Cf. Sorocka v. Severe, 858 So. 2d 388 (Fla. 3rd DCA 2003)(what is an essential term must be evaluated on a case-by-case basis).

Application of the “mirror image rule” by the Fifth District Court of Appeals has the effect of invalidating a contract for the purchase of real property worth at least $272,000.00 on the basis of personal property worth no more than $100.00, and which the purported purchaser herself has consistently maintained that she had no interest in, and has not sought to acquire by her action. This is an application of the “mirror image rule” that this Court should not condone in light of a jury’s determination that the parties agreed to the material and essential terms of the contract, and where the equally sacrosanct common law doctrine of mutual assent provides a basis for affirmance of the jury’s determination.

CONCLUSION

Florida courts weigh the materiality of contract terms to determine whether an offer and acceptance are identical for purposes of the “mirror image rule”. 11 In this case, the jury determined that the parties had agreed to all material and essential terms. Should the decision of the District Court stand, it will have a dramatic impact on the law of contract in Florida, resulting in the ability to escape contractual obligations, even when the essential terms have been agreed upon.

Petitioner therefore requests that this Court accept jurisdiction of this case to resolve the conflict between the two basic concepts of contract law cited herein.

11 See Hallmark Builders, Inc. v. Hickory Lakes of Brandon, 444 So. 2d 1047 (Fla. 2nd DCA 1984)(offer made pursuant to a right of first refusal matches the original offer if the essential terms of the offer are identical). (emphasis added).

______JON E. KANE Florida Bar Number 814202 CHAD K. ALVARO Florida Bar Number 621412 MATEER & HARBERT, P.A. 225 East Robinson Street, Suite 600 Post Office Box 2854 Orlando, Florida 32802-2854 Telephone: (407) 425-9044 Facsimile: (407) 423-2016 Attorneys for Plaintiff/Petitioner

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been furnished via U.S.

Mail this 8th day of July, 2005 to Allan P. Whitehead, Esq., 930 S. Harbor City

Boulevard, Suite 505, Melbourne, Florida 32901.

______JON E. KANE Florida Bar Number 814202 CHAD K. ALVARO Florida Bar Number 621412 Attorneys for Plaintiff/Petitioner

11 CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that the foregoing petition complies with the font requirements of Rule 9.210(a)(2), Fla.R.App.P.

______JON E. KANE Florida Bar Number 814202 CHAD K. ALVARO Florida Bar Number 621412 Attorneys for Plaintiff/Petitioner