SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________
Case No. 6D23-608 Lower Tribunal No. 2021-CA-002262 _____________________________
LLOYD L. BOWEIN,
Appellant,
v.
JOHN SHERMAN and IRENE SHERMAN,
Appellees. _____________________________
Appeal from the Circuit Court for Collier County. Lauren L. Brodie, Judge.
November 17, 2023
WOZNIAK, J.
Lloyd L. Bowein (“Seller”), the owner of real property located in Naples,
Florida, appeals a final summary judgment ordering specific performance under a
sales contract with prospective buyers, John Sherman and Irene Sherman
(“Buyers”). 1 Because the sales contract contained a patent ambiguity based on its
1 This case was transferred from the Second District Court of Appeal to this Court on January 1, 2023. conflicting identifications of the property made subject to the sale, rendering the
contract void and unenforceable against Seller, we reverse the summary judgment.
Background
Seller listed four properties for sale on the multiple listing service (MLS), with
each listing identifying the list price as $2.5 million. Three of the properties were
“improved,” i.e., had a house built on them, and one property—537 96th Ave. N.—
was a vacant lot. Buyers sent Seller a standard form sales contract titled “Sales
Contract-As Is (Residential Improved Property).” The sales contract begins with the
statement that, if accepted, Seller has agreed to sell “the real property hereafter
legally described . . . (the ‘Real Property’).” The contract expressly states that the
“Real Property” and the items on that property will be collectively referenced as the
“Property.” On line 21, the contract asks for the address of the “Property,” which
Buyers filled in with “533 96th Avenue North, Naples, FL 34108”—just the one
parcel. Line 22 is titled “Legal Description of the Property,” and Buyers provided
(on Line 23) only the legal description of the one address—“Naples Park Unit 6 BLK
34 Lots 16 + 17”:
Lines 29 and 30 state that the purchase price of the “Property” is $2,000,000.
2 However, eight pages later, on line 463 titled “Other Terms and Conditions,”
Buyers identified all four properties as the subject of their offer:
A dispute between the parties arose as to whether Buyers’ offer was $2 million
for one property or all four, and Seller refused to close. Buyers filed suit for breach
of the sales contract, seeking specific performance, and later moved for summary
judgment. The trial court found that, read as a whole and giving meaning to all of
the sales contract’s provisions, lines 464 through 467 were meaningful and operative
and that the “Other Terms and Conditions” portion did not conflict with the earlier
Legal Description of the Property. It ordered that all four properties be sold for $2
million and rendered summary judgment for Buyers.
Analysis
“The interpretation of a contract, including whether the contract or one of its
terms is ambiguous, is a matter of law subject to de novo review.” Real Est. Value
Co., Inc. v. Carnival Corp., 92 So. 3d 255, 260 (Fla. 3d DCA 2012) (citations
omitted). We further observe at the outset that “[t]he equitable remedy of specific
performance may be granted only where the parties have actually entered into a
definite and certain agreement.” Mintzberg v. Golestaneh, 390 So. 2d 759, 760 (Fla.
3 3d DCA 1980) (citations omitted); see also Fla. Bank & Tr. Co. at W. Palm Beach
v. Field, 25 So. 2d 665, 666 (Fla. 1946) (“Specific performance is in order only
where there is a valid existing contract.”). To be enforceable, the agreement must
be definite as to, among other things, its subject matter. Nichols v. MoAmCo Corp.,
311 So. 2d 750, 751 (Fla. 2d DCA 1995).
Seller argues that the contract is not subject to specific performance because
of the sales contract’s ambiguity in the identity of the properties to be included in
the sale, i.e., an ambiguity in its subject matter. Page one of the contract gives the
address and legal description of one property and yet, eight pages later and in a
section labeled “Other Terms and Conditions,” the contract identifies four properties
as the subject of the offer. Seller asserts that the description in a real estate contract
of the property to be sold is not an “other term and condition,” but rather is the
subject matter of the contract itself, which subject matter is identified in the address
and legal description portions of the contract. He points out that nowhere on the first
page do Buyers reference the much later addition of three more properties. The two
different property descriptions constitute a patent ambiguity that was created by the
drafters/Buyers, he asserts, thus precluding enforcement of the contract. We agree.
“[A] patent ambiguity is that which appears on the face of the instrument and
arises from the use of defective, obscure, or insensible language.” Crown Mgmt.
Corp. v. Goodman, 452 So. 2d 49, 52 (Fla. 2d DCA 1984). The different legal
4 descriptions and addresses in different parts of the sales contract on its face lead us
to conclude a patent ambiguity exists. See Carson v. Palmer, 190 So. 720, 722 (Fla.
1939) (“A patent ambiguity in the description of land is such an uncertainty
appearing on the face of the instrument that the Court, reading the language of the
instrument in the light of all facts and circumstances referred to therein, is unable to
derive therefrom the intention of the parties as to what land was to be conveyed.”);
Nationstar Mortg. Co. v. Levine, 216 So. 3d 711, 716 (Fla. 4th DCA 2017) (holding
internal contradiction “constituted a patent ambiguity because it appeared on the face
of the agreement; no extrinsic facts or evidence were needed to reveal the
ambiguity”).
Because the ambiguity at hand is patent, parol evidence cannot be used to cure
it. See, e.g., Venema v. Tost, 424 So. 2d 786 (Fla. 3d DCA 1982) (holding use of
parol evidence to remove patent ambiguity in legal description contained in deed is
error and thus specific performance will not lie); Mendelson v. Great W. Bank,
F.S.B., 712 So. 2d 1194, 1196 (Fla. 2d DCA 1998) (“[I]f the instrument’s description
of the property is patently ambiguous, and the instrument furnishes no other
information from which the parties’ intention can be gleaned, the attempted
conveyance is void, and parol evidence may not be employed to cure the
deficiency.”); see also Carson, 190 So. at 722 (“In interpreting instruments courts
are always inclined to that interpretation which will give effect to the instrument; but
5 where there is nothing in the instrument to show the grantors’ intention as to which
lot was to be conveyed, the courts are powerless and can do nought but declare the
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SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________
Case No. 6D23-608 Lower Tribunal No. 2021-CA-002262 _____________________________
LLOYD L. BOWEIN,
Appellant,
v.
JOHN SHERMAN and IRENE SHERMAN,
Appellees. _____________________________
Appeal from the Circuit Court for Collier County. Lauren L. Brodie, Judge.
November 17, 2023
WOZNIAK, J.
Lloyd L. Bowein (“Seller”), the owner of real property located in Naples,
Florida, appeals a final summary judgment ordering specific performance under a
sales contract with prospective buyers, John Sherman and Irene Sherman
(“Buyers”). 1 Because the sales contract contained a patent ambiguity based on its
1 This case was transferred from the Second District Court of Appeal to this Court on January 1, 2023. conflicting identifications of the property made subject to the sale, rendering the
contract void and unenforceable against Seller, we reverse the summary judgment.
Background
Seller listed four properties for sale on the multiple listing service (MLS), with
each listing identifying the list price as $2.5 million. Three of the properties were
“improved,” i.e., had a house built on them, and one property—537 96th Ave. N.—
was a vacant lot. Buyers sent Seller a standard form sales contract titled “Sales
Contract-As Is (Residential Improved Property).” The sales contract begins with the
statement that, if accepted, Seller has agreed to sell “the real property hereafter
legally described . . . (the ‘Real Property’).” The contract expressly states that the
“Real Property” and the items on that property will be collectively referenced as the
“Property.” On line 21, the contract asks for the address of the “Property,” which
Buyers filled in with “533 96th Avenue North, Naples, FL 34108”—just the one
parcel. Line 22 is titled “Legal Description of the Property,” and Buyers provided
(on Line 23) only the legal description of the one address—“Naples Park Unit 6 BLK
34 Lots 16 + 17”:
Lines 29 and 30 state that the purchase price of the “Property” is $2,000,000.
2 However, eight pages later, on line 463 titled “Other Terms and Conditions,”
Buyers identified all four properties as the subject of their offer:
A dispute between the parties arose as to whether Buyers’ offer was $2 million
for one property or all four, and Seller refused to close. Buyers filed suit for breach
of the sales contract, seeking specific performance, and later moved for summary
judgment. The trial court found that, read as a whole and giving meaning to all of
the sales contract’s provisions, lines 464 through 467 were meaningful and operative
and that the “Other Terms and Conditions” portion did not conflict with the earlier
Legal Description of the Property. It ordered that all four properties be sold for $2
million and rendered summary judgment for Buyers.
Analysis
“The interpretation of a contract, including whether the contract or one of its
terms is ambiguous, is a matter of law subject to de novo review.” Real Est. Value
Co., Inc. v. Carnival Corp., 92 So. 3d 255, 260 (Fla. 3d DCA 2012) (citations
omitted). We further observe at the outset that “[t]he equitable remedy of specific
performance may be granted only where the parties have actually entered into a
definite and certain agreement.” Mintzberg v. Golestaneh, 390 So. 2d 759, 760 (Fla.
3 3d DCA 1980) (citations omitted); see also Fla. Bank & Tr. Co. at W. Palm Beach
v. Field, 25 So. 2d 665, 666 (Fla. 1946) (“Specific performance is in order only
where there is a valid existing contract.”). To be enforceable, the agreement must
be definite as to, among other things, its subject matter. Nichols v. MoAmCo Corp.,
311 So. 2d 750, 751 (Fla. 2d DCA 1995).
Seller argues that the contract is not subject to specific performance because
of the sales contract’s ambiguity in the identity of the properties to be included in
the sale, i.e., an ambiguity in its subject matter. Page one of the contract gives the
address and legal description of one property and yet, eight pages later and in a
section labeled “Other Terms and Conditions,” the contract identifies four properties
as the subject of the offer. Seller asserts that the description in a real estate contract
of the property to be sold is not an “other term and condition,” but rather is the
subject matter of the contract itself, which subject matter is identified in the address
and legal description portions of the contract. He points out that nowhere on the first
page do Buyers reference the much later addition of three more properties. The two
different property descriptions constitute a patent ambiguity that was created by the
drafters/Buyers, he asserts, thus precluding enforcement of the contract. We agree.
“[A] patent ambiguity is that which appears on the face of the instrument and
arises from the use of defective, obscure, or insensible language.” Crown Mgmt.
Corp. v. Goodman, 452 So. 2d 49, 52 (Fla. 2d DCA 1984). The different legal
4 descriptions and addresses in different parts of the sales contract on its face lead us
to conclude a patent ambiguity exists. See Carson v. Palmer, 190 So. 720, 722 (Fla.
1939) (“A patent ambiguity in the description of land is such an uncertainty
appearing on the face of the instrument that the Court, reading the language of the
instrument in the light of all facts and circumstances referred to therein, is unable to
derive therefrom the intention of the parties as to what land was to be conveyed.”);
Nationstar Mortg. Co. v. Levine, 216 So. 3d 711, 716 (Fla. 4th DCA 2017) (holding
internal contradiction “constituted a patent ambiguity because it appeared on the face
of the agreement; no extrinsic facts or evidence were needed to reveal the
ambiguity”).
Because the ambiguity at hand is patent, parol evidence cannot be used to cure
it. See, e.g., Venema v. Tost, 424 So. 2d 786 (Fla. 3d DCA 1982) (holding use of
parol evidence to remove patent ambiguity in legal description contained in deed is
error and thus specific performance will not lie); Mendelson v. Great W. Bank,
F.S.B., 712 So. 2d 1194, 1196 (Fla. 2d DCA 1998) (“[I]f the instrument’s description
of the property is patently ambiguous, and the instrument furnishes no other
information from which the parties’ intention can be gleaned, the attempted
conveyance is void, and parol evidence may not be employed to cure the
deficiency.”); see also Carson, 190 So. at 722 (“In interpreting instruments courts
are always inclined to that interpretation which will give effect to the instrument; but
5 where there is nothing in the instrument to show the grantors’ intention as to which
lot was to be conveyed, the courts are powerless and can do nought but declare the
instrument a nullity.”). Simply stated, a trial court cannot choose one contradictory
provision of a contract over another without impermissibly rewriting the contract.
See Emerg. Assocs. of Tampa, P.A. v. Sassano, 664 So. 2d 1000, 1002 (Fla. 2d DCA
1995) (“Florida courts have consistently declined to allow the introduction of
extrinsic evidence to construe [a patent ambiguity] because to do so would allow a
trial court to rewrite a contract with respect to a matter the parties clearly
contemplated when they drew their agreement.”). Here, the conflict in a material
term of this contract, its subject matter, renders the contract unenforceable; without
a meeting of the minds as to what real estate was being bought and sold, the contract
fails for indefiniteness, and it cannot be revived by parol evidence.
While Buyers argue that reading the contract as a whole reveals no ambiguity,
reading the contract as a whole is actually what exposes the patent ambiguity: effect
cannot be given to the lines identifying a single property address and giving the legal
description of only that single property without ignoring the much later reference to
three additional properties as the subject of the offer. The initial language reflects
an intent to purchase only that single property, while the subsequent language
expresses an intent to purchase all four. Both provisions cannot be given effect.
Consequently, we reverse.
6 REVERSED.
WHITE and GANNAM, JJ., concur.
Lawrence J. Marraffino, of Lawrence J. Marraffino, P.A., Gainesville, for Appellant.
Daniel Hogan, of Boatman Richie, Naples, for Appellees.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF TIMELY FILED