DOZIER VS. STATE
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM A.D., 2004 RACING PROPERTIES, L.P., Appellant, ** ** vs. ** CASE NO. 3D03-2578 L.T. BALDWIN, III, ** LOWER TRIBUNAL NO. 01-8186 Appellee. ** Opinion filed August 25, 2004. An appeal from the Circuit County, Barbara S. Levenson, Judge. Court for Miami-Dade Kluger, Peretz, Kaplan & Berlin, and Alan Kluger, and Jason S. Oletsky, for appellant. Johnson & Bell, and Joseph Patricios & Winker, for appellee. R. Marconi; Zumpano Before LEVY, FLETCHER, AND RAMIREZ, JJ. RAMIREZ, J. Racing Properties, L.P. appeals the entry of an order in which the trial court granted appellee L.T. Baldwin, III s motion to enforce the parties mediated settlement agreement. Baldwin cross-appeals the trial court s ruling that the default interest under the terms of the parties underlying funds agreement were stopped escrowed. enforceable contract We accruing reverse upon which the day because a in there mediated which is no settlement agreement could be enforced, and thus dismiss the crossappeal. Baldwin million. loaned Racing Properties the sum of $3.2 When Racing Properties defaulted on the loan, Baldwin filed a lis pendens. Racing Properties then sued Baldwin to quiet title and Baldwin counterclaimed for an equitable mortgage. At the subsequent mediation, the parties reached an agreement in principle. For the agreement in principle to take effect, a number of conditions had to be satisfied. One of these conditions required certain documentation to be completed by May 10, 2001. time was of the essence. The parties understood that Baldwin in turn agreed to cancel the lis pendens and dismiss the litigation. The trial court eventually discharged the lis pendens. Between attempted principle. to May 9 and renegotiate Baldwin, for September the terms example, 28, of the 2001, Baldwin agreement requested in additional collateral not provided for in the agreement in principle. He also attempted to continue the litigation which he had 2 agreed to dismiss. Indeed, Baldwin appealed the discharge of the lis pendens. This Court denied the appeal.1 On September 28, 2001, Baldwin moved to enforce the agreement in principle. The trial court s order that granting Baldwin s motion to enforce now forms the basis of this appeal. We find that the agreement in principle was executory in nature and did not become effective when key aspects of the agreement established were not contract law, complied a with. condition Under precedent well is a condition which calls for the performance of an act after a contract is entered into, upon the performance or happening of which its obligation to perform is made to depend. See Cohen v. Rothman, 127 So. 2d 143, 147 (Fla. 3d DCA 1961). It is elementary that there must be at least a substantial performance of conditions precedent in order to authorize a recovery as for performance of a contract. Id. Furthermore, the alteration of one of the material terms of a contract constitutes said contract. a counter-offer and rejection of See Padron v. Plantada, 632 So. 2d 113, 114 (Fla. 3d DCA 1994). 1 See Baldwin v. Racing Properties, L.P., 792 So. 2d 463 (Fla. 3d DCA 2001). 3 Under the facts before us, the agreement in principle did not become conditions binding precedent because was not one met. of the Paragraph 4 express of the agreement in principle states: [t]he documentation shall be completed by May 10, 2001. Properties transmitted Baldwin. Baldwin the was On May 9, 2001, Racing required to documentation by the next day. documentation complete the to required Baldwin did not complete the required documents prior to the agreed upon deadline of May 10. Racing Properties thereafter granted Baldwin an extension until May 17, 2001, within which Baldwin could comply. Baldwin again failed to comply. To ignore one term of the agreement, but uphold the others, would be tantamount to the creation of a new contract. agree with timely Racing complete Properties the required that Baldwin s documents We thus failure nullified to the enforceability of the contract. Additionally, Baldwin s request for additional collateral constituted a counter-offer, notwithstanding the fact that it was withdrawn upon objection. Baldwin s very own appellate brief notes that collateral is one of the material terms of a loan agreement. Indeed, it is based on the notion that all material terms of the agreement are present and that collateral is one of the material terms 4 that Baldwin seeks to enforce the agreement in principle. It is evident that Baldwin wants to have it both ways Baldwin wants an enforceable contract, but also wants a contract that evolves on a regular basis. not possible. This is simply It is not possible legally and it is not possible according to the very terms of the agreement in principle. We next turn to another issue raised on appeal related to the intervention of Jerome Grigoli in the underlying litigation. We find that the allowed Grigoli to intervene. trial court improperly Grigoli alleged that he had entered into a secret verbal deal with Racing Properties, which entitled Properties, Grigoli as to to well ten percent as other admitted later dissimilar him that the claims in interest entities his and claims the in Racing individuals. were underlying quite litigation between Baldwin and Racing Properties. A shall trial not discretion. court s be decision disturbed to without allow a an showing intervention of abuse of See Fasig v. Florida Society of Pathologists, 769 So. 2d 1151, 1153 (Fla. 5th DCA 2000). However, the interest which entitles a person to intervention must be shown to be direct and immediate the intervenor must show a gain or loss by the direct legal operation and effect of 5 the judgment. See Faircloth v. Mr. Boston Distiller Corp., 245 So. 2d 240 (Fla. 1970); Schindler v. Schiavo, 866 So. 2d 140, 141 (Fla. 2d DCA 2004). An intervention is thus only appropriate where the issues the intervenor raises are related to the case being litigated. claims The intervenor in this case admitted that his were quite underlying case. dissimilar from the claims in the His claims therefore have no bearing on the underlying litigation. As such, the trial court abused its decision discretion in its to allow Grigoli s intervention. We therefore reverse the trial court s order enforcing the mediated settlement agreement. Baldwin s cross-appeal, finding issues raised. 6 In addition, we dismiss no need to address the
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