Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT KIRA MOORE and SHAWN MOORE, Appellants, v. ROBERT WAGNER, individually and as Trustee of Trust No. 18605, Appellees. No. 2D22-292 August 4, 2023 Appeal from the Circuit Court for Hillsborough County; E. Lamar Battles, Judge. Brandon S. Vesely of The Florida Appellate Firm, P.A., St. Petersburg, for Appellants. Donald A. Mihokovich and Eric J. Partlow of Adams and Reese LLP, Tampa, for Appellees. ATKINSON, Judge. Dr. Shawn Moore and his wife Kira Moore appeal from the final summary judgment entered in favor of Robert Wagner, individually and as Trustee of Trust No. 18605, permitting him to retain the $34,700 deposit they provided with a lease application for the residential property managed by Mr. Wagner and owned by the Trust. While we agree with the trial court that the lease application constituted an enforceable agreement, we reverse because a disputed issue existed regarding whether Dr. Moore refused to enter into the proposed lease. In August 2019, Dr. Moore and his family were in the process of relocating to Tampa for a new position he had accepted in Brandon. He needed to find suitable housing for his family with immediate availability because his children were starting school. So, on August 6, 2019, he met Mr. Wagner at the property in Lutz. After briefly viewing it before his flight, Dr. Moore signed a "lease application." It provided the following: APPLICATION DEPOSIT: Applicant and any co-applicants must pay in total the Application Fee and Application Deposit shown below. The Application Fee is a non- refundable processing fee. The Application Deposit will be applied as part or all of the lease security deposit if a lease is entered into between the applicant (and any co- applicants) and the landlord. If any additional security deposit will be required, it is indicated below. If applicant is not approved to enter into a lease for the type [of] dwelling requested and all information is true on this and any co- applications, the application deposit will be returned. If applicant and any co-applicants are approved and applicant and any co-applicants refuse to enter into the proposed lease, the deposit will be forfeited as a liquidated damage for landlord's loss of rent and re- rental expenses. (Emphasis added). The application included an "Application Fee" in the amount of $75, along with the "Total deposit required (including pet if any)" of $20,000. It indicated that the "Deposit paid with application" was $34,700. It also specified that Dr. Moore desired to occupy the property "ASAP" for a term of twelve months. 2 Mr. Wagner represented to Dr. Moore that he needed the security deposit to secure the property because many other people were interested in renting it. Dr. Moore signed the document and directed his wife, who was not present at the property, to wire Mr. Wagner $34,700, which she did. Three days later, on August 9, 2019, Mrs. Moore went with the couples' realtor to see the property. The parties have differing accounts of what transpired that day. Mr. Wagner testified that when Mrs. Moore and her realtor arrived on August 9, 2019, Mr. Wagner "presented the lease agreement and tried to give her possession of the home, and she refused it." He said that Mrs. Moore "stated that she was looking at other homes and did not know . . . what she was going to do. So that is when [he] realized that their intentions all along were to rent another home and not my home." Mr. Wagner "found out after-the-fact through these texts from the realtor that they had lined up several houses to look at after . . . giving me the application deposit and committing to me and taking my home off the market and me committing to them, they were not really committed." (Emphasis added). He said that on August 9, 2019, "I thought I was going in there to hand her the keys, get the lease agreement signed, and give them possession because they were urgent to get their kids in school." He testified that Mrs. Moore said, "I don't really want to enter into the lease agreement. I'm not sure what we're going to do. We're going to look at other houses." The Moores provided sworn testimony that Mr. Wagner never presented them with the lease agreement despite repeated requests. In her affidavit, Mrs. Moore averred, "I never told Mr. Wagner that that [sic] I refused possession of the home on August 9, 2019, because I wanted to 3 view other homes, it was because he continued to refuse to provide us with a written lease after multiple requests." Mrs. Moore testified that Mr. Wagner "tried to bully me into taking the keys to the house without a lease." According to Mrs. Moore, Mr. Wagner indicated to her that "a lease was unnecessary," and then "he tried to forcibly put the keys into my hand." Dr. Moore said that he still wanted to lease the property from Mr. Wagner, telling his wife, "If [Mr. Wagner] provides us a lease, let's just proceed." He testified that his "wife didn't like [Mr. Wagner] at all and said she didn't trust him and didn't want to enter the lease. But I said . . . , 'Look, we need a house. It's a nice house. If he provides us with a reasonable lease, we'll have some protections under the terms of the lease.' " On August 9, 2019, Mr. Wagner told the Moores' realtor that he had approved the lease application, but the realtor said in an email that Mr. Wagner never presented her with the lease: Each time I asked about when a lease would be presented Mr. Wagner would state that he did not need a lease and was entitled to keep the deposit. This was the response I received each time I asked why he had not presented a lease. I was never presented with a lease agreement nor was I ever aware of him presenting or attempting to present one to Dr. or Mrs. Moore. On August 12, 2019, Dr. Moore told Mr. Wagner he would not enter into a rental agreement because Mr. Wagner had "failed to deliver on [his] promises, including . . . provid[ing] us with a definitive lease in a timely fashion." Dr. Moore demanded the return of the deposit; Mr. Wagner failed to comply. The Moores sued Mr. Wagner and the Trust, alleging in their amended complaint conversion (Count I), negligent misrepresentation (Count II), unjust enrichment (Count III), breach of oral contract (Count IV), and deposit/advance rents (Count V). They also 4 sought a declaratory judgment (Count VI) as to the enforceability of the liquidated damages clause in the lease application. Mr. Wagner filed a counterclaim for defamation. Mr. Wagner and the Trust moved for summary judgment on the amended complaint. The trial court entered judgment in favor of Mr. Wagner and the Trust on all counts, concluding that the lease application was an enforceable contract and that based upon its plain language, the deposit was nonrefundable. Mr. Wagner voluntarily dismissed the counterclaim against the Moores. "Appellate courts review orders granting summary judgment de novo." Greeley v. Wal-Mart Stores E., LP, 337 So. 3d 478, 480 (Fla. 2d DCA 2022). Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fla. R. Civ. P. 1.510(a). A defendant may obtain summary judgment by proving that no reasonable fact finder could return a verdict for the plaintiff. G & G In-Between Bridge Club Corp. v. Palm Plaza Assocs., Ltd., 356 So. 3d 292, 297 (Fla. 2d DCA 2023) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The Moores contend that the lease application is not a valid, binding contract because essential terms of the residential lease were not specified in the lease application. We review the issue de novo. See Jericho All-Weather Opportunity Fund, LP v. Pier Seventeen Marina & Yacht Club, LLC, 207 So. 3d 938, 941 (Fla. 4th DCA 2016) ("Whether an agreement constitutes a valid contract is a question of law subject to a de novo standard of review." (citing Richardson v. Knight, 197 So. 3d 143, 144 (Fla. 4th DCA 2016))). 5 "The basic elements of an enforceable contract are offer, acceptance, consideration, and specification of essential terms." Triton Stone Holdings, L.L.C. v. Magna Bus., L.L.C., 308 So. 3d 1002, 1006 (Fla. 4th DCA 2020) (quoting Jericho, 207 So. 3d at 941). "It is well established that a meeting of the minds of the parties on all essential elements is a prerequisite to the existence of an enforceable contract . . . ." Acosta v. Dist. Bd. of Trs. of Miami-Dade Cmty. Coll., 905 So. 2d 226, 228 (Fla. 3d DCA 2005) (quoting Greater N.Y. Corp. v. Cenvill Miami Beach Corp., 620 So. 2d 1068, 1070 (Fla. 3d DCA 1993)). Contrary to the Moores' contention, the lease application is an enforceable, stand-alone contract and not "merely an agreement to make an agreement which is not enforceable as a contract under Florida case law." See Irby v. Mem'l Healthcare Grp., Inc., 901 So. 2d 305, 306 (Fla. 1st DCA 2005) (citing Quigley v. Laventhol & Howarth, 382 So. 2d 137 (Fla. 1st DCA 1980)). Independent of the future lease agreement it was intended to facilitate, it included its own set of mutually exchanged promises. The parties do not dispute that Mr. Wagner agreed to hold the property for the Moores pending approval of their application in exchange for the nonrefundable deposit. Therefore, until such time as Mr. Wagner disapproved the Moores' application or he approved it and the parties entered into the lease, Mr. Wagner would be required to forbear renting the property to anyone else and forego the opportunity for an alternative source of rental funds, a consideration reflected in the agreement's inclusion of the "landlord's loss of rent" as a purpose for liquidated damages. In support of their argument that the lease application was merely an agreement to agree, the Moores contend that because the lease application is missing terms that would ordinarily be included in a 6 residential lease agreement―the duration of the lease, the date of commencement, "late fee penalties, repair and maintenance policies, the landlord's rights for entry, and any rules or regulations governing the property"―there was not mutual assent and the contract was "illusory." However, as explained above, the lease application was not an agreement to rent the residential property. It was an agreement not to rent the property to any other potential applicants until Mr. Wagner conducted the requisite background check and reviewed the Moores' application. The fact that the parties had not yet negotiated every term of the lease agreement is immaterial to whether Mr. Wagner was entitled to retain the Moores' deposit. The Moores also argue that the liquidated damages clause in the lease application is void for lack of mutuality of remedies. To the extent that the Moores argue that the parties must have the same remedy, this "concept has 'largely disappeared from the law of American jurisdictions.' " Blue Paper, Inc. v. Provost, 914 So. 2d 1048, 1052 (Fla. 4th DCA 2005) (first quoting LaBonte Precision, Inc. v. LPI Indus., Corp., 507 So. 2d 1202, 1203 (Fla. 4th DCA 1987); and then quoting Rohlfing v. Tomorrow Realty & Auction Co., 528 So. 2d 463, 466–67 (Fla. 5th DCA 1988)). "[A]n absence of mutuality of remedies will not destroy an agreement's validity." Redington Grand, LLP v. Level 10 Props., LLC, 22 So. 3d 604, 608 (Fla. 2d DCA 2009) (alteration in original) (quoting Blue Paper, Inc., 914 So. 2d at 1052). Rather, the "parties to a contract may agree to limit their respective remedies and . . . those remedies need not be the same." Id. (quoting Ocean Dunes of Hutchinson Island Dev. Corp. v. Colangelo, 463 So. 2d 437, 439 (Fla. 4th DCA 1985)). The Moores needed a house to rent quickly; Mr. Wagner wanted a tenant but did not want to risk leaving the property unoccupied without compensation if the 7 Moores decided to back out. These parties agreed that if Mr. Wagner refused to enter into a lease—because, e.g., he did not approve the Moores' application—then the Moores would get their deposit back; if the Moores were approved but refused to enter into a lease, then Mr. Wagner would get to keep the deposit. However asymmetrical these remedies might seem to a disinterested observer, the parties to the lease application were free to exchange promises in a manner that best suited their respective situations. As the Moores suggest, the lease application did leave unanswered questions, such as whether the Moores would be required to accept any lease agreement presented by Mr. Wagner. However, prognostic limitations do not necessarily amount to ambiguities that preclude a meeting of the minds. While it remained to be seen whether Mr. Wagner would ultimately present a lease to the Moores' liking, what was agreed upon was that if the Moores declined to rent the property, Mr. Wagner could retain the deposit. That this might have placed the Moores at a disadvantage in any future negotiation over lease terms is a consequence of the Moores' decision to provide a deposit and enter into the lease application before hammering out the details of the lease terms—a risk they were presumably willing to take due to the urgency of their need for suitable housing. Courts cannot rewrite voluntarily executed agreements that are unfavorable for one party but are short of unconscionable. Contracts are to be construed in accordance with the plain meaning of the words contained therein . . . . It is never the role of a trial court to rewrite a contract to make it more reasonable for one of the parties or to relieve a party from what turns out to be a bad bargain . . . . A fundamental tenet of contract law is that parties are free to contract, even when one side negotiates a harsh bargain. 8 Universal Med. Inv. Corp. v. Mike Rollison Fence, LLC, 331 So. 3d 242, 247 (Fla. 1st DCA 2021) (emphasis omitted) (quoting Brooks v. Green, 993 So. 2d 58, 61 (Fla. 1st DCA 2008)). The parties entered into a valid, binding contract whereby Mr. Wagner would hold the property for the Moores in exchange for the deposit. However, while the trial court correctly concluded that the lease application was an enforceable contract, it nonetheless erred in entering summary judgment in favor of Mr. Wagner and the Trust. Summary judgment is only appropriate when there are no genuine disputes of material fact, and the movant is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(a). "An issue of fact is 'genuine' for summary judgment purposes if it could allow a jury to return a verdict in favor of the non-moving party, and an issue of fact is 'material' if it could have any bearing on the outcome of the case under the applicable law." Del Rio v. Russell Eng'g, Inc., 351 So. 3d 1180, 1182 (Fla. 3d DCA 2022) (citing Anderson, 477 U.S. at 248–49). Under the lease application, Mr. Wagner was entitled to retain "the deposit . . . as a liquidated damage for landlord's loss of rent and re-rental expenses," in the event that the "applicant and any co-applicants are approved and . . . [they] refuse to enter into the proposed lease, the deposit will be forfeited." Therefore, the forfeiture of the deposit as liquidated damages turns on whether Dr. Moore refused to enter into the lease agreement. Proof of their refusal necessarily requires evidence that Mr. Wagner presented the Moores with a "proposed lease" into which they refused to enter. Both Mr. Wagner as well as the Moores advanced conflicting evidence regarding whether the Moores received a proposed lease from Mr. Wagner. The Moores and their realtor maintained that despite repeated requests, Mr. Wagner never gave them a proposed lease 9 agreement. And the realtor insisted that Mr. Wagner responded to her request for the proposed lease by indicating that he did not need one. Mr. Wagner, in contrast, testified during his deposition that when he met with Mrs. Moore on August 9, 2019, three days after Dr. Moore signed the lease application, he presented her with the lease agreement and attempted to give her possession of the property. This is a factual dispute that the trier of fact must resolve after weighing the credibility of the parties. See Orozco v. McCormick 105, LLC, 276 So. 3d 932, 935 (Fla. 3d DCA 2019) ("A trial court is not permitted to weigh credibility of a witness or party in connection with a motion for summary judgment." (citing Hernandez v. United Auto. Ins., 730 So. 2d 344, 345 (Fla. 3d DCA 1999))). Because a genuine dispute of a material fact existed as to whether Mr. Wagner presented the Moores with the proposed lease agreement, summary judgment was improvidently granted. Reversed and remanded. KELLY and LaROSE, JJ., Concur. Opinion subject to revision prior to official publication. 10