JEFFREY MORRIS v. MGZ PROPERTIES, LLC.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JEFFREY MORRIS,
Appellant,
v.
MGZ PROPERTIES, LLC, YORAM GALEL, HENRY GALEL,
and DAVIS ZIMET,
Appellees.
No. 4D17-3587
[July 18, 2018]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Jeffrey Dana Gillen, Judge; L.T. Case No. 50-2014-CA-
03775XXXXMB (AE).
Carol A. Gart of Carol A. Gart P.A., Boca Raton, for appellant.
Ronald M. Gaché and Scott A. Simon of Shapiro, Fishman & Gaché,
LLP, Boca Raton, for appellees.
KUNTZ, J.
Does the word “sale” mean any sale? The appellees insist it does not,
at least not when the parties did not contemplate a specific form of a sale
when they signed the contract. However, because this contract is clear
and unambiguous, and not susceptible to multiple meanings, we conclude
it must be applied as written and reverse the circuit court’s judgment.
The contract at issue stated that payment would be due if any of three
triggering events occurred, the first event being the “sale of the property”
located at a specific street address. The appellant argued that this
payment obligation was triggered when the property was sold at a
foreclosure sale. The circuit court disagreed and concluded that the word
“sale” as used in the contract contained a latent ambiguity, requiring the
court to consider parol evidence to determine whether the parties intended
that an involuntary sale, such as a foreclosure sale, would trigger the
payment obligation.
The appellees argue that “[t]his is a classic case of latent ambiguity in
a contract.” In support, they rely extensively on cases such as Taylor v.
Taylor, 183 So. 3d 1121, 1122 (Fla. 5th DCA 2015), Florida Power & Light
Co. v. Hayes, 122 So. 3d 408, 411 (Fla. 4th DCA 2013), and Riera v. Riera,
86 So. 3d 1163, 1166 (Fla. 3d DCA 2012). Indeed, these cases do state
that a latent ambiguity can arise from clear and intelligible language when
“some extrinsic fact or extraneous evidence creates a need for
interpretation or a choice between two or more possible meanings.” Riera,
86 So. 3d at 1166. But that is not what we have here.
In Riera, the contract stated that “the parties shall equally pay for the
costs of the minor child’s tuition, books, supplies and any and all other
related expenses,” and the parties disputed whether room and board fit
within the phrase “related expenses.” Id. at 1166-67. The Third District
concluded that the language was intelligible on its face but room and board
are material expenses one would expect to be included if the parties
intended to split those costs equally. Id. Thus, the court held, it “becomes
paramount to determine whether ‘any and all other related expenses’
refers to expenses related to tuition, books, and supplies, or whether it
refers to all related expenses associated with attending college.” Id. The
court then concluded that a latent ambiguity exists when “a contract fails
to specify the rights or duties of the parties under certain conditions or in
certain situations.” Id.
Similarly, in Taylor the parties prepared a contract providing that a
Qualified Domestic Relations Order (“QDRO”) would serve as the method
for enforcing distribution of the husband’s pension plan. 183 So. 3d at
1122. The City of Orlando Police Department rejected the QDRO and the
Fifth District concluded that rejection qualified “as an extrinsic fact or
extraneous circumstance which altered the parties’ understanding of the
means of payment and their respective duties.” Id. at 1123.
Finally, in Hayes, this Court held that the contractual language “lying
within the lake” could be applied in two equally plausible ways. 122 So.
3d at 411. We concluded that the “contract language here is ‘susceptible
to two different interpretations, each one of which is reasonably inferred
from the terms of the contract . . .’” and reversed the court’s summary
judgment order. Id. (quoting Miller v. Kase, 789 So. 2d 1095, 1097–98
(Fla. 4th DCA 2001)).
The facts in the cases upon which the appellees rely are not comparable
to those here. Here, there is no extrinsic fact or extraneous circumstance
that changed the parties’ understanding of the contract. Nor is the
contractual language susceptible to two interpretations. Thus, we “look to
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the dictionary for the plain and ordinary meaning” of the word “sale.” See
Beans v. Chohonis, 740 So. 2d 65, 67 (Fla. 3d DCA 1999).
Black’s Law Dictionary defines “sale” as “[t]he transfer of property or
title for a price.” Sale, Black’s Law Dictionary (10th ed. 2014). For
“foreclosure sale,” Black’s Law Dictionary states “see sale,” and then
defines the term within the definition of “sale” as “[t]he sale of mortgaged
property, authorized by a court decree or a power-of-sale clause, to satisfy
a debt.” Foreclosure Sale, Black’s Law Dictionary (10th ed. 2014).
Similarly, we have held that “[i]t would therefore seem that both the
common and legal meanings of the word, ‘sale,’ indicate a transfer of title.
. .” Martyn v. First Fed. Sav. & Loan Ass'n of W. Palm Beach, 257 So. 2d
576, 579 (Fla. 4th DCA 1971). This includes any transfer of title;
foreclosure sales included.
To accept the appellees’ position would require us to rewrite the
contract to state “sale of the property, unless it is a foreclosure sale” or
“voluntary sale of the property.” If that is what the appellees intended,
they should have written the contract accordingly before signing it.
When the terms of a contract are clear and unambiguous, we are
required to apply the plain and ordinary meaning of the words and apply
them as they are written. The “sale of the property” provision was triggered
when the property was sold. On remand, judgment must be entered in
favor of the appellant.
Reversed and remanded.
DAMOORGIAN and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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