William Castelli v. Rene Castelli , 2015 Fla. App. LEXIS 3042 ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
WILLIAM CASTELLI,
Appellant,
v.
RENE CASTELLI,
Appellee.
No. 4D14-1687
[March 4, 2015]
Appeal of a non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Laura M. Watson, Judge; L.T. Case No.
FMCE12-6148 (42).
John H. Pelzer of Greenspoon Marder, P.A., Fort Lauderdale, for
appellant.
Robert J. Moraitis and Peter M. Raimondi of Robert J. Moraitis, P.A.,
Fort Lauderdale, for appellee.
FORST, J.
Appellant William Castelli, the husband, appeals a non-final order
finding him in civil contempt and compelling him to execute a contract to
sell real property, i.e., the former marital residence previously shared with
Appellee Rene Castelli, the wife from whom Appellant is separated.
Appellee has conceded that the trial court erred in entering a civil
contempt order. As to the trial court’s order rejecting Appellant’s attempt
to exercise a right of first refusal with respect to the purchase of the home,
we reverse and remand to the trial court to honor and enforce Appellant’s
exercise.
Background
The parties were involved in proceedings to dissolve their marriage.
As part of this effort, in November 2013, the trial court entered an agreed
order to list and sell the former marital residence (“Listing Order”). The
Listing Order commanded the parties to list the home for sale and attempt
to receive the best price. The Listing Order also granted Appellant “a right
of first refusal for a bona fide offer acceptable to the parties without paying
a commission as long as Wife is paid all cash for her interest.”
On April 23, 2014, the parties received an offer from a third party to
purchase the residence for $600,000. On April 24, 2014, Appellee signed
the contract and Appellant, through his attorney, e-mailed Appellee,
through her attorney, notifying her that he was exercising his right of first
refusal. Appellant’s e-mail stated:
Dear Bob: My client Bill Castelli has decided to exercise his
right of first refusal in accordance with the courts [sic]
previous orders. It is my clients [sic] intent to purchase the
former marital home in accordance with the courts [sic]
previous orders and the parties [sic] contract with Blue
Horizon Realty. This E-Mail is intended to be formal notice of
Bill Castelli’s intent to exercise his right of first refusal. Please
feel free to contact me if you have any questions.
Appellee’s attorney responded thirty-eight minutes later, at 11:21 a.m.,
demanding that Appellant prepare, sign, and deliver a contract matching
the third party offer, as well as provide proof of his ability to comply with
the offer, by 1:00 p.m. Appellee further stated that if the contract and
proof of assets were not completed by 1:00 p.m., she “fully expects and
demands [Appellant] to likewise execute that offer so we have a completely
signed contract by 5:00 PM today.” Appellant did not comply with either
demand, as he did not provide Appellee with a contract matching the offer
or sign the existing third party offer.
On April 28, 2014, Appellee filed an emergency motion to compel
Appellant to execute the third party offer, to hold Appellant in contempt,
and for sanctions. In her motion, Appellee argued Appellant had 24 hours
to match the third party contract terms, but failed to do so, and asked the
court to require Appellant to immediately execute the third party offer.
Appellee’s motion did not provide an alternative avenue to resolve this
matter, i.e., the trial court requiring Appellant to satisfy his exercise of
right of first refusal.
On May 1, 2014, the trial court found Appellant to be in contempt for
violating the Listing Order by failing to execute the offer. The trial court
also found Appellant did not exercise his right of first refusal as required
by International Christian Fellowship, Inc. v. Vinh on Property, Inc., 954 So.
2d 1214 (Fla. 4th DCA 2007). The trial court appointed independent
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counsel to act as Appellant’s attorney-in-fact to sell the former marital
home.
The issue before the court on appeal is whether the trial court erred in
finding Appellant did not sufficiently exercise his right of first refusal.
Analysis
“A right of first refusal is a right to elect to take specified property at
the same price and on the same terms and conditions as those contained
in a good faith offer by a third person if the owner manifests a willingness
to accept the offer.” Old Port Cove Holdings, Inc. v. Old Port Cove Condo.
Ass’n One, Inc., 986 So. 2d 1279, 1285 (Fla. 2008) (quoting Pearson v.
Fulton, 497 So. 2d 898, 900 (Fla. 2d DCA 1986)). “[A] right of first refusal
ripens into an option and is governed by the law of options when the owner
of the property in question manifests a willingness to accept a good faith
offer for the purchase of the property.” Anderson v. Draddy, 458 So. 2d
803, 804-05 (Fla. 4th DCA 1984). In the instant case, the right of first
refusal effectively transformed into an option contract when Appellee
agreed in principle to accept the third party purchaser’s offer, both before
and after Appellant had invoked his “right of first refusal.”
Neither party argues that Appellant imposed new conditions by stating
that his purchase would be “in accordance with the courts [sic] previous
orders and the parties [sic] contract with Blue Horizon Realty.” In fact,
Appellee’s answer brief states “the Blue Horizon Contract and Listing
Order do not contain any essential terms regarding the purchase of the
subject property.” Instead, Appellee maintains that the above-noted e-
mail sent by Appellant’s counsel was deficient because it failed to
“explicitly” state the “essential terms and conditions of the [third party
purchaser’s] Contract.” Appellant’s position is that no specific language
was required to exercise his right of first refusal option beyond a clear
expression, to the other party, of his intent to exercise the option. After
he did so, it was Appellee who breached the newly formed contract by
unilaterally imposing new conditions not found in the Listing Order.
The law is clear that, when the holder of a right of first refusal attempts
to exercise his right but adds or deletes terms and/or conditions that
render the offer different than that submitted by the third party
prospective purchaser, the right of first refusal has not been properly
exercised. See Int’l Christian Fellowship, Inc., 954 So. 2d at 1216
(explaining that while “[a] right of first refusal exercise need only be
identical to the offer terms which are essential,” it is not properly exercised
when the offer was made with different material terms than the agreement
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between the owner and the third party purchaser) (internal quotations and
citation omitted); Green v. First Am. Bank & Trust, 511 So. 2d 569, 575
(Fla. 4th DCA 1987) (holding that an option, derived from a right of first
refusal, was not properly exercised where the option holder’s offer price
did not match that of a third party purchaser); Coastal Bay Golf Club, Inc.
v. Holbein, 231 So. 2d 854, 858 (Fla. 3d DCA 1970) (explaining one offer
to purchase matches the other if the essential terms of the offer are
identical).
Appellant’s e-mail offer did not “explicitly” state that he was point-by-
point matching the third party offer, nor did it note specific details of the
third party’s offer that were being matched. On the other hand, Appellant’s
offer did not contain any terms or conditions that differed from the
essential terms and conditions of the third party purchaser’s offer and the
e-mail did state that it “is intended to be formal notice of [Appellant’s]
intent to exercise his right of first refusal.” Since a right of first refusal
inherently requires the holder of the right to accept the same terms and
conditions as the third party offer, we hold that Appellant’s e-mail stating
that he was exercising his right of first refusal implicitly adopted all the
terms of the third party contract. Any reference to the Blue Horizon
contract was, as Appellee concedes, meaningless and did not alter the
terms of the third party contract Appellant sought to match. Therefore,
Appellant’s e-mail contained sufficient language to properly exercise his
right of first refusal under the Listing Order.
Rather than require a point-by-point recitation of the material terms of
the third party contract, it is sufficient that a party simply announce her
desire to exercise her right of first refusal. In 7-Eleven v. Stin, L.L.C., 961
So. 2d 977, 981 (Fla. 4th DCA 2007), we stated that “[i]t was not necessary
for [purchaser] to parrot the terms of the [third party] contract because,
by invoking the other two documents, [purchaser] was essentially agreeing
to the terms of the [third party] contract. It is of no import that other non-
material terms remained to be negotiated.” Likewise, in this case, the
Appellant had no need to specifically quote the terms of the third party
offer he was agreeing to match.
This proposition finds support from our sister courts. The Third
District stated that a party sufficiently exercised its right of first refusal
merely by sending a letter announcing its intentions to do so, even if the
letter “had not included the language ‘under the terms of the . . . Purchase
Agreement.’” Keys Lobster, Inc. v. Ocean Divers, Inc., 468 So. 2d 360, 362
n.2 (Fla. 3d DCA 1985). Likewise, the Second District has held that a right
of first refusal was properly exercised in a letter that simply stated, “Please
take notice that we hereby elect to exercise that right of first refusal and
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hereby demand that you forward any or all executed contracts pursuant
to that right to the undersigned at this address.” Pearson, 497 So. 2d at
899-900. While we reaffirm our holding in International Christian
Fellowship, Inc., that a right of first refusal has not been exercised where
a party attempts to change terms or conditions so as to render the exercise
different than the third party contract, we now emphasize that an
attempted exercise that is silent on the terms of the acceptance clothes
itself in the language of the third party offer it seeks to match.
Upon Appellant’s exercise of his right of first refusal, a binding contract
between Appellant and Appellee was immediately created. The exercise of
a right of first refusal “cannot properly be construed, consistent with
general contract principles, as an offer to purchase. Such a construction
would imply that [Appellee] was free to accept or reject such an ‘offer.’ This
was clearly not the case.” Keys Lobster, Inc., 468 So. 2d at 362. Appellee’s
introduction of new terms, not found in the Listing Order, in her reply e-
mail was a rejection of Appellant’s right of first refusal and, as such,
constituted a breach of the newly formed contract. In the face of such a
breach, Appellant cannot be blamed for failing to draft and sign a contract,
complete with proof of ability to pay, within an hour and a half.
Conclusion
In conclusion, Appellant properly exercised his right of first refusal in
his e-mail to Appellee. A party need not recite the terms of the third party
contract he is agreeing to match when he exercises his right of first refusal;
rather it is simply enough to announce an intent to match them.
Sometimes less truly is more. As such, we hereby reverse and remand to
the trial court to strike Appellant’s contempt order and enforce Appellant’s
exercise of his right of first refusal.
Reversed and Remanded.
GERBER and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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