Young v. Johnston

475 So. 2d 1309, 10 Fla. L. Weekly 2243
CourtDistrict Court of Appeal of Florida
DecidedSeptember 25, 1985
DocketAX-79
StatusPublished
Cited by13 cases

This text of 475 So. 2d 1309 (Young v. Johnston) 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
Young v. Johnston, 475 So. 2d 1309, 10 Fla. L. Weekly 2243 (Fla. Ct. App. 1985).

Opinion

475 So.2d 1309 (1985)

Donald W. YOUNG and Ol' Smokey Homes, Inc., a Florida Corporation, Appellants/Cross-Appellees,
v.
Michael M. JOHNSTON, Appellee/Cross-Appellant.

No. AX-79.

District Court of Appeal of Florida, First District.

September 25, 1985.
Rehearing Denied October 24, 1985.

*1310 Charles R. Gardner of Gardner, Shelfer & Duggar, Tallahassee, for appellants/cross-appellees.

F. Perry Odom and Mary L. Sweet of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellee/cross-appellant.

SMITH, Judge.

Appellant Ol' Smokey Homes, Inc. (Ol' Smokey) appeals a final judgment in favor of appellee Michael M. Johnston (Johnston) after a non-jury trial. Ol' Smokey contends that the trial court erred in finding that a contract existed between Ol' Smokey and Johnston, as well as in its measurement of damages resulting from the alleged breach. Johnston cross-appeals the trial court's damages award, maintaining that the award failed to compensate him for all of his losses occasioned by the alleged breach. We reverse the award on appeal, and partially reverse on the cross-appeal.

Although the parties insist upon certain conflicting variations in, and interpretative nuances of, the evidence, the critical facts bearing upon the issue of existence of a contract appear to be as follows: Johnston approached Donald W. Young (Young), President of Ol' Smokey Homes, Inc., in early January 1983 to discuss construction by Ol' Smokey of a residence on property owned by Johnston in Tallahassee, Florida. Young advised Johnston to have a floor plan and materials specification sheet drawn up, and to distribute them to other contractors, as well as to Ol' Smokey, in order to secure bids on the proposed residence. After doing so, Johnston informed Young that Ol' Smokey's bid of $67,731 was the lowest bid offered. Young next advised Johnston to attempt to secure a loan from Security First Federal Savings & Loan Association (Security First Federal) in order to finance construction of the residence. Acting on this advice, Johnston applied for a loan at Security First Federal on February 17, 1983. He was informed at this time that he would have to secure certain documentation and perform certain tasks before his loan application might be approved. The first two requirements — securing approval of his building plans by a local architectural control committee and paying the loan application fee — were completed by Johnston on February 17 and 24, 1983, respectively. A third requirement, acquiring homeowners insurance, was accomplished on March 30, 1983. The fourth and fifth requirements — acquiring a description of building materials needed for construction as well as a written contract of construction from Ol' Smokey — were accomplished by Johnston on February 21, 1983. However, Johnston was unable to meet the final requirement, that of securing Young's presence as builder at a loan-closing meeting at Security First Federal on April 6, 1983. Accordingly, Johnston *1311 was not able to close the loan commitment he tentatively negotiated with Security First Federal.

The sequence of events surrounding Young's failure to attend Johnston's loan closing was subject to some dispute below. As previously noted, on February 21, 1983, Johnston had acquired from Young a written proposal to build Johnston's residence. At this time, Johnston and Young mutually agreed to an increase in the construction price to $70,000 after Young had informed Johnston that the cost of materials had risen since Ol' Smokey's bid in January 1983. Although Young signed this contract on February 21, 1983, Johnston was unable to testify unequivocally as to when he signed the contract.[1] Johnston did testify that he subjectively felt certain that the parties had already reached an agreement at that time because he had informed Young that the only "loose end" remaining before the agreement would be finalized was the securing of his loan from Security First Federal. Young's testimony was that he felt that Johnston was still in the process of analyzing the various bids he had received, or that he was taking Young's advice to verify the cost increases Young had claimed justified Ol' Smokey's alteration of its initial bid, or both.

Johnston testified that he tentatively received his construction loan commitment from Security First Federal on March 24, 1983, advising Young of this fact on the same date. However, Young disputed this testimony. In any event, both agreed that Johnston did so inform Young on April 1, 1983, and further, that Johnston informed Young that final approval of the loan was conditioned on attendance of all parties, including Young as the prospective builder, at the formal closing scheduled for April 6, 1983. On cross-examination, Young admitted familiarity with this requirement of Security First Federal, based on prior dealings with that institution.

Young disputes Johnston's version of events leading up to the aborted loan closing. Johnston testified that Young stated that he "would" be at the closing; Young's testimony was that he "could" be there. What was undisputed was that Young did not attend the closing, with the result that Johnston failed to obtain the financing necessary for construction of the residence by Ol' Smokey.[2] On April 5, 1983, the day preceding the scheduled closing, Young called Johnston at his place of employment telling Johnston that Ol' Smokey would not be able to commence construction for at least four months. Johnston testified that his response to this news was "I'll have to think about this." Exactly what took place subsequent to the aborted loan closing date is also the subject of some dispute, but it fairly appears that the parties attempted for a time to reschedule a date when Ol' Smokey could begin construction of the residence. Young advised Johnston to seek out another builder to construct the residence, suggesting alternatively that timely commencement of construction would require Young to employ unfamiliar subcontractors whom he would not be able to personally supervise. These rescheduling efforts failed, and on May 24, 1983, Young informed Johnston that Ol' Smokey would not construct Johnston's residence "under any circumstances."

Johnston filed suit, alleging that Ol' Smokey's failure to construct the residence constituted a breach of contract.[3] The trial court heard two days of testimony, after which it issued a final judgment finding that Ol' Smokey and Johnston had in fact entered into a contract; that Ol' Smokey had breached this contract; and that as a result of this breach Johnston was entitled to damages in the amount of $11,700. This *1312 figure represented the difference between the construction price agreed to by Johnston and Ol' Smokey and the next lowest bid for construction of Johnston's residence, which was $81,700. The trial court rejected Johnston's claims for other items of damages, finding that these expenses would have been incurred by Johnston notwithstanding Ol' Smokey's breach.

Ol' Smokey raises five points on appeal. However, on close analysis two basic contentions emerge. First, Ol' Smokey asserts that the trial court erroneously found a contract to exist between the parties. It contends that while Ol' Smokey was aware that Johnston was considering it for construction of his residence, Johnston never unequivocally communicated his apparent final choice of Ol' Smokey to Young. Ol' Smokey maintains that any "acceptance" of Ol' Smokey's offer of construction was not binding because it "remained in the breast of the acceptor," Kendel v. Pontious,

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Cite This Page — Counsel Stack

Bluebook (online)
475 So. 2d 1309, 10 Fla. L. Weekly 2243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/young-v-johnston-fladistctapp-1985.