Kelley v. Burnsed

805 So. 2d 1101, 2002 Fla. App. LEXIS 1120, 2002 WL 181096
CourtDistrict Court of Appeal of Florida
DecidedFebruary 6, 2002
DocketNo. 1D01-0539
StatusPublished
Cited by2 cases

This text of 805 So. 2d 1101 (Kelley v. Burnsed) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kelley v. Burnsed, 805 So. 2d 1101, 2002 Fla. App. LEXIS 1120, 2002 WL 181096 (Fla. Ct. App. 2002).

Opinion

BARFIELD, J.

In this suit for specific performance of an option to purchase provision in a lease agreement, we reverse the trial court’s order granting the defendant’s motion for summary judgment.

In 1974, appellant leased from Thomas and Wilma Rawls Newman, a retirement-aged couple, a lot near Lake Talquin, part of a larger parcel owned by Wilma Newman. The agreement provided that appellant would pay the Newmans $45 per month rent, as well as the taxes on any improvements he made to the property. The lease period was to end “3 months after the death of the Lessee,” and the agreement contained a provision giving appellant the option to purchase the leased premises and an adjoining parcel that extended to the lake for $10,000 “in the event the Lessee survives Lessors and Mary Inez Newman, sister of Co-Lessor Thomas F. Newman.” The agreement provided that the Newmans had the right to cancel the lease if they sold the 33.9 acres which included the leased premises, and that if they did so, appellant could remove any improvements he had made, or alternatively, the Newmans would buy the improvements at a price to be determined by a formula included in the agreement. The agreement provided that it “shall be binding upon the heirs, devisees, executors, administrators and assignees of said Lessors and Lessee” and that during the “3 months after the death of the Lessee,” appellant’s heirs or his estate would have “the right to exercise either of [the] two options granted Lessee” regarding improvements to the property.

Appellant built a two-bedroom residence on the property and made other improvements to the property, “in anticipation of exercising the option to purchase contained in the lease.” Mary Inez Newman died in 1994; Wilma Rawls Newman died in April 1998, leaving a life estate in the subject property to her husband, with the remainder interest given in fee simple title to Joyce Burnsed, the sole beneficiary and personal representative of her estate; Thomas Newman died on August 28, 2000.

On September 8, 2000, appellant (who was then in his 80s) recorded a “notice of intent to exercise option” to purchase the property according to the terms of the 1974 agreement. Burnsed’s attorney wrote his attorney a letter which stated that it constituted Burnsed’s notice of cancellation of the lease, that neither Burnsed nor the estate “will accept any checks for rent,” and that “any checks mailed subsequent to the death of Thomas Newman have been held without cashing.” The letter requested appellant to advise as to “what, if any, improvements will be removed pursuant to the cancellation clauses of the lease.”

Appellant then filed a notice of claim in the Wilma Newman probate proceedings, and on October 26, 2000, he had delivered [1103]*1103to Burnsed’s attorney a letter enclosing a $10,000 check “as the option purchase price on the lakehouse lot and adjacent lot.” He also filed a complaint for specific performance against Burnsed, personally and as personal representative of the estate of Wilma Newman. Burnsed’s answer included a motion for summary judgment on the grounds that Burnsed owns the property in fee simple title, but was not a party to the “alleged lease,” which she canceled “as personal representative of the estate of Wilma Rawls Newman and due to the subsequent death of Thomas Newman, the life estate holder”; that appellant has not been on the property since 1996 and has left the improvements in disrepair; that Burnsed has maintained and fenced the property, and has provided a caretaker; and that the rent amount is “completely unreasonable for such valuable property.” It also included the affirmative defenses that the option to purchase was void upon the deaths of the Newmans, relying upon Frissell v. Nichols, 94 Fla. 403, 114 So. 431 (1927), and that the lease was void as an unreasonable restraint on alienation, citing Iglehart v. Phillips, 383 So.2d 610 (Fla.1980), and Brine v. Fertitta, 537 So.2d 113 (Fla. 2d DCA 1988). Finally, it included a demand to remove clouds of title and “pay all fees and costs associated therewith,” and a demand for attorney’s fees and costs “pursuant to slander of title,” citing Colen v. Patterson, 436 So.2d 182 (Fla. 2d DCA), rev. denied, 438 So.2d 831 (Fla.1983). Appellant denied the allegations in both affirmative defenses. His response to the motion for summary judgment stated that the lease agreement by its terms is binding upon the heirs of the Newmans and denied that Burnsed has fee simple title “until the administration of the probate estate of Wilma Rawls Newman and until the interest of any individuals, such as Plaintiff, with contract rights are determined.” He affirmed that a caretaker had moved onto the property and a fence had been installed “at some time after the death of Thomas Newman,” and that “monthly lease payments totaling more than $14,000 have been paid by Plaintiff.” He asserted that all the conditions precedent to his right to purchase the property had occurred, that the 33.9 acres are worth $169,500 according to the inventory filed in the probate proceedings, so that the option price of $10,000 for less than 3/4 of an acre “is clearly reasonable,” and that there had been no showing that the value of the remaining property not subject to the option “would be impacted in any way.” In addition, he claimed that Burnsed had not filed an affidavit in support of her motion, and that because she had not timely responded to his request for admissions, request for production, and interrogatories, all the statements in those documents were deemed admitted.

After a hearing on the motion, the trial judge entered an order which included the following findings:

7. An option to purchase does not create any rights in land and the option cannot be related back to the date of the creation of the option or of the lease, Gautier v. Lapof, 91 So.2d 324 (Fla. 1956).
8. The lease is now void because it was not mutual between the Respondent and the Plaintiff. The option to purchase clause is now void because it was not mutual between the Respondent and the Plaintiff.
9. The death of any party to the lease terminated the lease with its option to purchase clause, Frissell v. Nichols, 94 Fla. 403, 114 So. 431 (Fla.1927).
10. The lease including its option to purchase clause is void as an unreasonable restraint on alienation, Ingle-[1104]*1104hart[Iglehart] v. Phillips, 383 So.2d 610 (Fla.1980).
11. The Respondent is entitled to fall repayment of her attorney’s fees and costs, Colen v. Patterson, 436 So.2d 182 (Fla. 2d DCA 1983).

The order granted Burnsed’s motion for summary judgment, ordered appellant to withdraw from the Wilma Rawls Newman probate case, “where his filings have created a cloud on the title of this large tract of land,” and to pay “all fees and costs associated therewith,” and also ordered him to pay all fees and costs associated with the subject suit.

We must reverse the trial court’s order. The 1974 agreement by its terms bound the heirs and assigns of all the parties, and therefore bound Burnsed to sell the property to appellant when he exercised the conditional option to purchase and tendered the agreed-upon purchase price. Burnsed’s arguments, not addressed in the order, that the rent and the purchase price were unreasonable under the circumstances, involve factual disputes which are not appropriate for disposal by summary judgment.

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Bluebook (online)
805 So. 2d 1101, 2002 Fla. App. LEXIS 1120, 2002 WL 181096, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelley-v-burnsed-fladistctapp-2002.