Petition for Writ of Certiorari — Alba Duque, Petitioner v. Chabad at the Civic Center, Inc.

Supreme Court briefAug 27, 2021

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IN THE

Supreme Court of the United States

ALBA DUQUE,

FILED

AUG 2 7 2021

EggysKSJiw *

Petitioner,

CHABAD AT THE CIVIC CENTER, INC

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT COURT OF APPEAL OF

FLORIDA FOURTH DISTRICT

PETITION FOR WRIT OF CERTIORARI

ALBA DUQUE

3805 Johnson Street

Hollywood, FL 33021

Petitioner

RECEIVED

AUG 3 1 2021

,*N

■

QUESTIONS PRESENTED FOR REVIEW

Respondent Chabad at the Civic Center, Inc. was

granted a Judgment in an Specific Performance

Case against Petitioner , Alba Duquei The Circuit

Court Judge strike a Quit Claim Deed as an

evidence in the case without a legal cause; this

document was essential for the dismissal of the

case.

The questions presented are as follows:

(1)*Can a Real Estate Contract be legally valid and

enforceable if not all the required parties signed it?

(2)*When a Quit Claim Deed became legally valid?

(3)*Can a Circuit Court Judge disregard a legal

document as evidence?

(4) Does a Quitclaim Deed Have to be Recorded to be

Valid in the State of Florida?

PARTIES TO THE

PROCEEDING AND RULE

29.6 STATEMENT

The Petitioner, Alba Duque, was the defendant in

the Circuit Court of the Seventeenth Judicial

Circuit in and for Broward County and the

Appellant in the Fourth District Court of Appeal of

Florida. Miss Duque is an individual. Thus, there

are no disclosures to be made by her pursuant to

Supreme Court Rule 29.6.

The Respondent is Chabad at the Civic Center, Inc.

is a Florida Non- Profit Corporation

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

PARTIES TO PROCEEDINGS BELOW

TABLE OF CONTENTS

111

TABLE OF AUTHORITIES

PETITION FOR WRIT OF CERTIORARI

INTRODUCTION

REPORT OF OPINIONS BELOW

STATEMENT BASIS FOR JURISDICTION

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED...........................

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

APPENDIX

District Court of Appeal Florida Fourth District

Opinion Dated May 13,2021...............................

A-l

Supreme Court of Florida

Mandate Dated June 4, 2021

A-2

TABLE OF AUTHORITIES

CASES

PAGE

Abbott Labs v. GE Capital' 765 So. 2d 737, 740

(Fla. 5th DCA 2000)..................................................

Abercrombie v. Eidschun, Fla., 66So. 2d875.

Abruzzo v. Haller, 603 So. 2d 1338

(Fla. 1st DCA 1992)............................

A.R. Holland’ Inc. v. Wendco Corp., 884 So. 2d

1006, 1008 (Fla. 1st DCA 2004).............................

Bowers v. Medina, 418 So.2d 1068, 1069

(Fla. 3d DCA 1982)........................................

Caldwell v. Mississippi, 472 US. 320 (1985).

Canton v. Monaco P’ship, 156Ariz. 468, 470,

753 P.2d 158, 160 (Ct. App. 1987)..................

Carrol v. Dougherty, 355 So.2d 843, 843—46

(Fla. 2d DCA 1978).............................................

Cascade Tbr. Co. v. Northern Pac. R. Co., 28 Wn.

(2d) 684, 184 P. (2d) 90 (1947)..................................

Connecticut v. Doehr, 501 US. 1 (1991).

Cox v. La Pota, Fla., 76 So. 2d 662.

Elliot v. Elliot, 648 So. 2d 137, 138

(Fla. 4th DCA 1994)............................

Fernandez v. Homestar at Miller Cove, Inc.,

935 So.2d 547. 550 (Fla. 3d DCA 2006)........

Fuentes v. Shevin, 407 US. 67 (1972).

Found Health v. Westside EKG Associates,

944 So. 2d 188 (Fla. 2006)..............................

Hadley v. Baxendale, 9 Ex. 341, 156 Eng. Rep.

145(1854)................................................................

Hammond v. Hacker, 93 Fla. 194, 111 So. 511,

Havens v. Coast Florida, P.A., 117So. 3d 1179

(Fla. 2d DCA 2013)..................................................

Hostway Services v. HWAY FTL, 2010 WL 3604671

(S.D. Fla. 2010)..................................................................

J.J. Gumberg Co. v. Janis Services, 847So. 2d 1048,

1049 (Fla. 4th DCA 2003).................................................

Jenkins v. State, 385So. 2d 1356, 1359 (Fla. 1980).

Knowles v. C.I.T. Corp., 346So. 2d 1042, 1043

(Fla. 1st DCA 1977).................................................

Koplon v. Smith, 271 So.2d 762, 763 (Fla. 1972).

Lente v. Clarke, 22 Fla. 515, 1 So. 149, 151

Leroux v. Knoll (1947), 28 Wn. (2d) 964, 184

P. (2d) 564.............................................................

Livingston v. State, 441 So. 2d 1083, 1086 (Fla. 1983).36

Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982)....... 27

Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980)....35

Mazzei v. Money Store, 288 F.R.D. 45

(S.D.N. Y 2012).........................................

Mehler v. Huston, Fla., 57 So. 2d 836.

Mettler, Inc. v. Ellen Tracy, Inc., 648 So. 2d 253, 255

(Fla. 2d DCA 1994).

9,12

Mooney v. Holohan, 294 U.S. 103, 113, 55 S.

Ct. 340, 342, 79 L. Ed. 791 ( 1935)............. 29

Murciano v. Garcia, 958 So. 2d 423, 423 (Fla. 3d

DCA2007)...................................................................

Natl Council ofResistance ofIran v. Dept, ofState,

251 F.3d 192, 202-205 (D. C. Cir. 2001).

Pino v. Bank ofNew York, Mellon, 57 So. 3d950, 954

(Fla. 4th DCA 2011).

Piphus, 425 U.S. 247, 262(1978).

Roberson v. Florida Parole andProbation

Commission, 444So. 2d917, 921 (Fla. 1983).

Rollins, Inc. v. Butland, 951 So. 2d 860

(Fla. 2d DCA 2006)....................................

Scott v. Hotel Martinique, 48 So.2d 160, 161

(Fla. 1950)..............................................................

2,19

Shedd v. Luke, 299 So.2d 58, 59-60 (Fla. 1st

DCA 1974).............................................................

Shreeve v. Greer, 65 Ariz. 35, 39, 173 P. 2d

641, 644 (1946)................................................

Simons v. Tobin, 89 Fla. 321, 104 So. 583.

Strahan v. Haynes, 33Ariz. 128, 139, 262 P.

995, 999(1928).....................................................

Taylor, 941 So.2d at 563-64.

Truaxv. Corrigan, 257, US. 312,333, 42 S.Ct.

124, 129 (1921)..........................................................

United States v. Agurs,

427 U.S. 97 (1976)........

United States v. James Daniel Good RealProperty,

510 U.S. 43 (1993)

Vega v. T-Mobile USA, 564 F 3d 1256, 1272 (l1th

Cir. 2009....................................................................... 15

Volusia County v. Aberdeen at Ormond Beach, L.P.,

760 So.2d 126, 130 (Fla. 2000).

Volunteer Fleet v. United States, 282 U.S. 481,

489-42(1931)..........................................................

Wagner v. Peshastin Lbr. Co. (1928), 149 Wash.

328, 270 Pac. 1032....................................................... 24

Wesley Constr. Co. v. Lane, 323 So. 2d 649, 650

(Fla. 3d DCA 1975)..................................................

Westerberg v. Nininger, 6 So. 2d 378, 379—80

(Fla.1942)..................................................................

Williams v. Pennsylvania, 136 S. Ct. 1899, 1902,

195 L. Ed. 2d 132 (2016)............................................. 34

Yardum v. Scalese, 799 So.2d 382, 383

Vll

(Fla. 4th DCA 2001).

Zimmerman v. Diedrich

97So. 2d 120 (1957)......

STATUTES

PAGE

28 U.S.C. § 1257(a)

Article V of the Florida Constitution

Article V, Section 1 of the Florida Constitution......16

Florida Statute §817.535

Florida Statute § 702.01

19, 21

RULES

PAGE

Fla. R. App. P. 9.330(d)(2)

Florida Rule of Civil Procedure 1.115(e)

9, 15, 22

Florida Rule of Civil Procedure 1.540(b)

Passim

Vlll

PETITION FOR WRIT OF CERTIORARI

Alba Duque respectfully petitions for a Writ of

Certiorari to review the judgment of the Fourth

DCA after the Florida Supreme Court decline to

accept jurisdiction

INTRODUCTION

Summary judgment is proper if there is no genuine

issue of material fact and if the moving party is

entitled to judgment as a matter of law. Volusia

County v. Aberdeen at Ormond Beach, L.P., 760

So.2d 126, 130 (Fla. 2000). "Where no genuine issue

of material fact is shown to exist, the only question

for the appellate court is whether the summary

judgment was properly granted under the law."

Yardum v. Scalese, 799 So.2d 382, 383 (Fla. 4th

DCA 2001) (citing Wesley Constr. Co. v. Lane, 323

So.2d 649, 650 (Fla. 3d DCA 1975)). Thus, "[a] trial

court’s ruling on a motion for summary judgment

regarding a pure question of law is reviewed de

novo. "Fernandez v. Homestar at Miller Cove, Inc.,

935 So.2d 547, 550 (Fla. 3d DCA 2006).

Florida law has long recognized the use of specific

performance to enforce contracts for the sale of

homestead property. See Koplon v. Smith, 271

So.2d 762, 763 (Fla. 1972) (explaining that while

two witnesses are required to obtain specific

performance of a contract to sell a homestead, there

is no similar requirement to specifically perform a

contract to sell nonhomestead property); Scott v.

Hotel Martinique, 48 So.2d 160, 161 (Fla.1950)

(holding that “a contract for the sale of homestead

property may be specifically enforced if the contract

has been jointly executed by the husband and wife

in the presence of two subscribing witnesses”);

Westerberg v. Nininger, 6 So.2d 378, 379-80

(Fla. 1942) (affirming a trial court's grant of specific

performance of a homestead property); Shedd v.

Luke, 299 So.2d 58, 59-60 (Fla. 1st DCA 1974)

(stating that it is settled law in Florida that two

witnesses are required to obtain specific

performance of a homestead); Bowers v. Medina,

418 So.2d 1068, 1069 (Fla. 3d DCA 1982) (affirming

judgment ordering specific performance of a

contract to sell residential home); Carrol v.

Dougherty, 355 So.2d 843, 843-46 (Fla. 2d DCA

1978) (affirming summary judgment granted in

favor of the purchasers who brought suit for specific

performance of a contract for sale of sellers'

homestead, and holding “that contracts to convey

homestead realty fall into the same category as

contracts to convey any other kind of real estate”).

Genuine Issue of Material Fact- The existanse of a

valid contract

The remedy of specific performance is equitable in

nature and governed by equitable principles.

Strahan v. Haynes, 33 Ariz. 128, 139, 262 P. 995,

999 (1928). Thus, it is not an appropriate remedy if

there is evidence of unfairness, fraud, or

overreaching on the part of the non-breaching

party. Shreeve v. Greer; 65 Ariz. 35, 39, 173 P.2d

641, 644 (1946). Moreover, a non-breaching party

does not have the right to specific performance, but

must prove several elements and overcome various

equitable defenses in order to succeed in such an

action. Canton v. Monaco P'ship, 156 Ariz. 468, 470,

753 P.2d 158, 160 (Ct. App. 1987).

REPORTS OF OPINIONS BELOW

The opinion of the Fourth DCA giving rise to this

petition is Duque v. Chabad at the Civic Center,

Inc. (4D20-1690, Fla. 4th DCA 2021)

STATEMENT OF BASIS FOR JURISDICTION

The per curiam affirmance sought to be reviewed

was entered by the Fourth DCA on May 13th, 2021.

On June 4th, 2021 The Florida Supreme Court

declined to accept jurisdiction; therefore, the

Fourth DCA was the last resort from which

Petitioner could seek review.

Therefore, The Court’s jurisdiction is invoked under

28 U.S.C §1257 (a). Florida Star v. B.J.F., 530

So.2d 286, 288 n. 3 (Fla. 1988).

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

The Fifth Amendment to the United States Constitution

provides in relevant part- “No person shall be ...

deprived of life, liberty or property without due process

of law....”

The Fourteenth Amendment to the United States

Constitution provides in relevant part: “No state shall ...

deprive any person of . . . property, without due process

of law; nor deny to any person within its jurisdiction the

equal protection of the laws.”

Florida Rule of Civil Procedure 1.540(b) provides: “(b)

Mistakes; Inadvertence; Excusable Neglect; Newly

Discovered Evidence; Fraud; etc. On motion and upon

such terms as are just, the court may relieve a party or a

party's legal representative from a final judgment... for

the following reasons: ... (3) fraud (whether heretofore

denominated intrinsic or extrinsic), misrepresentation,

or other misconduct of an adverse party; ... The motion

shall be filed within a reasonable time, and for reasons

(l), (2), and (3) not more than 1 year after the judgment,

decree, order, or proceeding was entered or taken.”

STATEMENT OF THE CASE

A. Statement of the Facts

Respondent filed a Complaint on June 17th, 2019 for

Specific Performance Due to a Breach of Contract and

Damages.

Petitioner and Luis Guillermo La Torre ( Ex- husband)

share ownership of the property matter of the litigation

since April 18th, 2018

Petitioner signed a Real Estate Sales Contract with

Respondent on April 30th, 2019, but Luis Guillermo La

Torre (Indespensab,e Party) did not.

On March 3rd, 2020 Petitioner filed a Motion to Dismiss

Complaint with prejudice stating that the Sales

Contract was not valid and that since a valid contract

was necessary in order to file a complaint for specific

performance the case needed to be dismissed with

prejudice.

On July 29th, 2020 the Circuit Court granted Final

Judgment to Respondent striking the Warranty Deed

from the Case as requested from Respondent’s attorney;

the reason for the strike the Warranty Deed was that

the other title holder of the property ( Luis Guillermo La

Torre ) did not received the Deed on time, this is not

accurate!, Since Guillermo La Torre was present at the

time the Deed was signed, there are affidavits that

confirm this fact

Petitioner immediately appeal the same day of the order

The Fourth DCA Affirmed the Order of the Circuit Court

Judge.

How impartial is the 4th DCA?

The front page article reported “there is no question that

the Fourth District is pro-business and couldn't care less

about homeowners.” (emphasis added). It further

reported that the Fourth DCA “abuses per curiam

affirmances, or PCAs, to avoid explaining their rulings

on lender standing, ... [and] misuses the tool to

strategically sidestep writing opinions that could provide

grounds for rehearing. Instead, they say it uses the

decisions to wipe out options for further review and

avoid conflicts with other district courts.” Instead of a

reasoned opinion that would create conflict jurisdiction

for further review, the Fourth DCA issues a PCA that

says' you lose because we said so and there’s nothing you

can do about it.

REASONS FOR GRANTING THE WRIT

CERTIORARI

SHOULD

GRANTED

PROTECT DUE PROCESS RIGHTS GUARANTEED

14™

AMENDMENT

U.S.

CONSTITUTION AND TO PREVENT FRAUD ON

THE COURT OR BIASED.

CIRCUIT COURT JUDGES ARE ALWAYS BIASED

IN FAVOR

OF LAWYERS THAT SHARE

RELIGIOUS BELIEVES

The Sales Contract in this case id unenforceable

"A contract where the parties have not complied with the

requirements of the statute is neither void nor voidable! it

has much effect upon the legal relations of the contracting

parties with each other and with third persons. It can be

properly described as unenforceable, however, in as much

as the ordinary legal remedies are unavailable. If the

defense of the statute is properly made, a judgment for

damages for breach of the contract cannot be obtained!

and neither can a decree for specific performance unless

there has been fraud, mistake, or substantial part

performance or action in reliance on the contract. It has

been held that a statutory criminal process, provided for

the enforcement of certain types of contracts, is not

available! and the contract cannot be indirectly enforced

by the use of tort remedies by alleging that refusal to

perform the contract or to execute a sufficient

memorandum is tortious, or by suing the seller of goods in

trover because he has repudiated the oral contract and

sold the goods to a third person.

The statute may make a contract 'invalid’;

The Court’s opinion in Taylor v. Maness, 941 So.2d 559

(Fla. 3d DCA 2006), which was relied on by the trial court,

prohibits specific performance of contracts to sell

homestead property. However, nowhere in Taylor do we

suggest that specific performance is unavailable to enforce

a properly executed contract based on the homestead

status of the property. In Taylor, specific performance was

unavailable because the subject property was both Mr.

and Mrs. Maness' homestead, but only Mr. Maness signed

the contract to sell the property. Taylor, 941 So.2d at 56364. Because Mrs. Maness did not sign the contract, this

Court concluded that the contract was not capable of

being specifically performed. Id. at 564.

In this case Petitioner ALBA DUQUE was not the only

title holder at the moment that she signed the Sales

Contract , LUIS GUILLERMO LA TORRE was a title

holder and indispensable party at the time she signed the

Sales Contract ; however the Circuit Court Judge strike

the Deed that was signed one year before the filing of the

Specific Performance lawsuit complaint.

NO VALID CONTRACT, NO BREACH OF CONTRACT

The traditional elements of a breach of contract damages

claim are well known to every law student: l) the

existence of a valid contract; 2) a breach of that contract;

and 3) damages caused by that breach.1 There is no

requirement that the breach be material for the other

party to recover damages. As the Restatement (Second)

Contracts explains: “[E]very breach gives rise to a claim

for damages,”2 and “[a] determination that a failure is

not material means only that it does not have the effect

of’ excusing the future performance of the other party to

the contract.3

So, until the end of the last millennium, the materiality

of a breach of contract was not a proper element of a

damages claim in any jurisdiction within the United

States.4 Now, however, four of Florida’s district courts of

appeal have charted a new course — one requiring proof

of a “material” breach, thereby setting Florida adrift

from the other 49 states in the country.

The federal judiciary has noticed this novelty of Florida

contract law: In a national breach of contract class

action, Mazzei v. Money Store, 288 F.R.D. 45 (S.D.N.Y.

2012), the Southern District of New York was required

to address Florida’s “unusual. . . ‘materiality’

requirement,”5 and in a 2010 decision, Hostway Services

v. HWAY FTL, 2010 WL 3604671 (S.D. Fla. 2010),

federal Judge Cohn carefully dissected the genesis of

Florida’s “materiality requirement.” In reviewing the

Florida intermediate appellate courts’ break from

traditional contract law, he traced back what had

actually happened, focusing on the Fifth District’s 2000

decision in Abbott Labs v. GE Capital' 765 So. 2d 737,

740 (Fla. 5th DCA 2000):

Nonetheless, many Florida courts have included

‘material breach’ as one of the elements of a breach of

contract claim. Notably, in Abbott Labs, the Florida

district court injected the materiality requirement

without explanation. Moreover, the cases cited by Abbott

Labs do not list ‘material breach’ as an element of a

breach of contract action. See [Abbott Labs[ (citing

Mettler, Inc. v. Ellen Tracy, Inc., 648 So. 2d 253, 255

(Fla. 2d DCA 1994); Abruzzo v. Haller, 603 So. 2d 1338

(Fla. 1st DCA 1992). Furthermore, many of the Florida

courts that have listed ‘material breach’ as one of the

elements in a breach of contract action can be traced

back to Abbott Laboratories.^

Federal courts often cite Abruzzo when setting forth the

materiality requirement for a breach of contract action

under Florida law. Abruzzo, however, does not mention

materiality as an element of a breach of contract action.7

Having examined the jurisprudential history of Florida’s

materiality requirement, Judge Cohn concluded that it

“appearted] to be the result of spontaneous generation.”8

He was right. Indeed, from the time of Hadley v.

Baxendale, 9 Ex. 341, 156 Eng. Rep. 145 (1854) , until its

third-millennium “spontaneous generation” in Abbott

Laboratories, materiality had never been a required

element of a breach of contract damages action in any

state court.9 The Fifth District just “injected the

materiality requirement without explanation” in Abbott

Laboratories.10 After that decision, the Fourth District in

J.J. Gumberg Co. v. Janis Services, 847 So. 2d 1048,

1049 (Fla. 4th DCA 2003) , and the Third District in

Murciano v. Garcia, 958 So. 2d 423, 423 (Fla. 3d DCA

2007), added the same, novel element.

Judge Cohn was unable to locate a single case “where

the Supreme Court of Florida ha[d] held that a party

must prove a material breach to prevail in a breach of

contract action.”11 To the contrary, in Found Health v.

Westside EKG Associates, 944 So. 2d 188 (Fla. 2006),

issued after the Fourth and Fifth districts had already

adopted the materiality requirement, the supreme court

listed the elements of a third-party breach-of-contract

damages claim, but as Sherlock Holmes surely would

have noticed, the dog did not bark:12 The Florida

Supreme Court did not add the new “materiality”

element.13

Like the Florida Supreme Court, the First District has

never included materiality as an element for a breach of

contract damages claim. The court’s decisions simply list

the same elements that the Florida Supreme Court and

the other 49 states require: l) a valid contract; 2) a

breach; and 3) damages caused by that breach.14

Until recently, the Second District had also never

included a materiality element for breach of contract

damages claims.15 In June 2013, however, the court

announced that the elements of a breach of contract

claim were “(l) a valid contract, (2) a material breach,

and (3) damages” in Havens v. Coast Florida, P.A., 117

So. 3d 1179 (Fla. 2d DCA 2013).16 The Havens decision is

intriguing because it actually substituted materiality for

causation — an even more radical break from traditional

notions of contract law. In support, the decision cited one

case, Rollins, Inc. v. Rutland\ 951 So. 2d 860 (Fla. 2d

DCA 2006), a decision of the same court that did not

include materiality as an element.

The difference between the elements of causation and

materiality is (let’s just say it) material ' Causation

requires that a loss “ordinarily follows the breach of such

a contract in the usual course of events, or that

reasonable men in the position of the parties would have

foreseen as a probable result of breach.”17 Materiality

requires proof that the breach goes “to the essence of the

contract.”18 Justified by this higher burden, materiality

properly plays a role in contract law that loss causation

alone cannot- A material breach excuses the other party

from all future performance.19 Mere loss causation —

termed a “partial breach” — permits only the recovery of

damages.20

Florida’s district courts of appeal that have embraced

the “materiality” element appear not only to be in

conflict with the Florida Supreme Court, but also to be

the only appellate courts in the U.S. that require a

breach be material in order to recover damages in a

breach of contract case.21 Nonetheless, in 2013, the

Florida Supreme Court adopted Standard Jury

Instruction 416.4, “Breach of Contract

Essential

Factual Elements.” The instruction tells jurors that a

breach of contract plaintiff seeking damages must prove

that the defendant failed to do something “essential” to

the contract (or did something that the contract

prohibited as an essential feature of the contract).22 As a

separate element, the plaintiff must also prove causation

— that it was “harmed by the breach.”23

The ensuing Sources and Authorities section states' “An

adequately pled breach of contract action requires three

elements- (l) a valid contract; (2) a material breach; and

(3) damages. This general rule was enunciated by

various Florida district courts of appeal. ”24 In support,

the instructions cite decisions from each of the five

district courts of appeal, but those citations provide a

dubious foundation.

Two of the decisions — Knowles v. C.I.T. Corp., 346 So.

2d 1042, 1043 (Fla. 1st DCA 1977), and Mettler, Inc. v.

Ellen Tracy, Inc, 648 So. 2d 253 (Fla. 2d DCA 1994) —

do not even colorably impose a materiality requirement.

The entirety of the contract law discussion in Knowles

consists of the following sentence- “It is elementary that

in order to recover on a claim for breach of contract the

burden is upon the claimant to prove by a preponderance

of the evidence the existence of a contract, a breach

thereof and damages flowing from the breach.”25 The

discussion in Mettler (which was also cited in Abbott

Laboratories ) is no more supportive^ “All the elements

for breach of contract are sufficiently pled to state this

cause of action. [The plaintiff] alleged an offer,

acceptance, consideration, a contract, breach of the

contract and damages.”26 The other three decisions are

Abbott Laboratories27 and two district court decisions

that rely on that decision.28

Jury instructions are not substantive law, of course.

That is why the Florida Supreme Court typically

cautions — as it did when it adopted the standard

instructions for contract and business cases — that “it

would be inappropriate for this [clourt, at this time, and

without a case or controversy before us, to adjudicate all

legal principles embodied in these recommended

instructions as correctly setting forth the substantive

law applicable in any particular case.”29

When the opportunity presents itself, however, the

Florida Supreme Court should resolve whether

materiality is a required element of a breach of contract

claim for damages. The issue is important because

adding materiality as an element is more than a major

policy shift from over 150 years of jurisprudence! it

makes

Florida

significantly

different

legal

environment for businesses, including those considering

where to locate. Only in Florida do contracting parties

lack the ability to recover damages that partial breaches

of their contracts cause

an inability that

fundamentally undermines their reasonable economic

expectations.

i 17B C.J.S. Contracts §824 (2013).

2 Restatement (Second) Contracts §236, comment a.

3 Id. at §241, comment a. “Even if not material, the

failure may be a breach and give rise to a claim for

damages for partial breach (§§236, 243)).” Id. at §241,

comment (1981). See also id. at §235, comment b .

(“When performance is due, however, anything short of

full performance is a breach, even if the party who does

not fully perform was not at fault and even if the defect

in his performance was not substantial.”)! see also (“[I]f

the breach is not material, the damages may be

recovered, but are limited to those recoverable for a

partial breach.”)! accord 3 E. Farnsworth, Contracts

§12.8 (1990).

4 See, e.g., Reynolds Metals v. Hill\ 825 So. 2d 100, 105

(Ala. 2002); Alaska Energy Auth. v. Fairmont Ins., 845

P.2d 420, 424 n.3 (Alaska 1993); City of Tucson v. Super.

Ct. (Dong), 569 P.2d 264, 266 (App. 1977); Smith v.

Eisen, 245 S.W.3d 160, 168 (Ark. Ct. App. 2006); Oasis

West Realty v. Goldman, 250 P.3d 1115, 1121 (Cal.

2011); W Distrib. Co. v. Diodosio, 841 P.2d 1053, 1058

(Colo. 1992); Sullivan v. Thorndike, 934 A.2d 827, 833

(Conn. App. Ct. 2007); H-M Wexford, LLC v. Encorp.,

832 A.2d 129, 140 (Del. Ch. 2003); Tsintolas Realty Co.

v. Mendez, 984 A.2d 181, 187 (D.C. 2009); Norton v.

Budget Rent A Car, 705 S.E.2d 305, 306 (Ga. Ct. App.

2010); 808 Dev., LLC v. Murakami, 141 P.3d 996, 1013

(2006); Franklin Bldg. Supply v. Hymas, 339 P.3d 357

(Idaho 2014); Allstate Ins. v. Winnebago County Fair;

475 N.E.2d 230, 236 (Ill. App. 2d Dist. 1985); W.S.K v.

922 N.E.2d 671, 694 (Ind. Ct. App. 2010); Iowa

Mortgage Ctr. v. Baccam, 841 N.W.2d 107, 111 (Iowa

2013); Stechschulte v. Jennings, 298 P.3d 1083, 1098

(2013); Fannin v. Commercial Credit Corp. , 249 S.W.2d

826, 827 (Ky. 1952); Favrot v. Favrot, 68 So. 3d 1099,

1108 (La. Ct. App. 2011); Advanced Const Corp. v.

Pilecki, 901 A.2d 189, 196 (Me. 2006); Down E. Energy

Corp. v. RMR, Inc., 697 A.2d 417, 421 (Me. 1997);

Traylor v. Grafton, 332 A.2d 651, 674 (1975); Lease'It v.

Massachusetts Port Auth., 600 N.E.2d 599, 602 (Mass.

App. Ct. 1992); Miller-Davis Co. v. Ahrens Const., 848

N.W.2d 95, 104 (2014); Lyon Fin. Svc. v. Illinois Paper &

Copier, 848 N.W.2d 539, 543 (Minn. 2014); Bus.

Communications v. Banks, 90 So. 3d 1221, 1225 (Miss.

2012); Premier Golf Missouri v. Staley Land Co., 282

S.W.3d 866, 873 (Mo. Ct. App. 2009); Union Interchange

v. Allen, 370 P.2d 492, 496 (1962); Kotrous v. Zerbe, 846

N.W.2d 122, 126 (2014); Calloway v. City of Reno, 993

P.2d 1259, 1265 (Nev. 2000); LeTarte v. W. Side Dev.,

LLC, 855 A.2d 505, 508 (2004), EnviroFinance Group v.

Envtl. Barrier Co., 113 A.3d 775, 787 (App. Div. 2015);

McCasland v. Prather, 585 P.2d 33 6, 338 (N.M. Ct. App.

1978); Agway, Inc. v. Curtin, 557 N.Y.S.2d 605 (1990);

Furia v. Furia, 498 N.Y.S.2d 12 (N.Y. 1986); Poor v. Hill,

530 S.E.2d 838, 843 (N.C. Ct. App. 2000); Barrett v.

Gilbertson, 2013 ND 35, 1[7, 827 N.W.2d 831, 835;

Jarupan v. Hanna, 878 N.E.2d 66, 73 (Ohio Ct. App.

2007); Coen v. SemGroup Energy Partners, 310 P.3d

657, 666 (Okla. Civ. App. 2013); Slover v. Oregon State

Bd. of Clinical Soc. Workers, 927 P.2d 1098, 1101 (Or.

Ct. App. 1996); Orbisonia'Rockhill Joint Mun. Auth. v.

Cromwell Tp., Huntingdon County, 978 A.2d 425, 428

(Pa. Commw. Ct. 2009); Petrarca v. Fid. & Cas. Ins. Co.,

884 A.2d 406, 410 (R.I. 2005); S. Glass & Plastics Co.,

Inc. v. Kemper, 732 S.E.2d 205, 209 (S.C. Ct. App. 2012);

Morris, Inc. v. State, ex rel. State Dept. ofTransp., 2011

S.D. 85, 11 34, 806 N.W.2d 894, 903 (S.D. 2011);

BancorpSouth Bank v. Hatchel, 223 S.W.3d 223, 227

(Tenn. Ct. App. 2006); McAfee, Inc. v. Agilysys, Inc., 316

S.W.3d 820, 825 (Tex. App. 2010); Tooele Assoc, v. Tooele

City 2012 284 P.3d 709, 714 (Utah 2012); Bair v. Axiom

Design,

P.3d

388

392

( Utah 2001); Reynolds v. Chynoweth, 68 Vt. 104; (1895)

Ramos v. Wells Fargo, 770 S.E.2d 491, 493 (Va. 2015);

Nw. Indep. Forest Mfrs. v. Dep’t ofLabor & Indus. , 899

P.2d 6, 9 (Wash. Ct. App. 1995); Sneberger v. Morrison,

776 S.E.2d 156, 171 (W. Va. 2015); Brew City

Redevelopment Group, LLC v. The Ferchill Group, 714

N.W.2d 582, 588 (Wis. Ct. App. 2006) affd sub nom.

Brew City Redevelopment Group, LLC v. Ferchill Group,

2006 WI 128, HU, 724 N.W.2d 879; Schlinger v.

McGhee, 2012 WY 7,112, 268 P.3d 264, 268 (Wyo. 2012);

Morris v. U.S., 33 Fed. Cl. 733, 751 (Fed. Cl. 1995).

5 Mazzei, 288 F.R.D. at 67.

6 Hostway Services, 2010 WL3604671 at *8-9 (S.D. Fla.

2010) (citing J.J. Gumberg Co. v. Janis Servs., 847 So.

2d 1048, 1049 (Fla. 4th DCA 2003); Friedman v. N.Y.

Life Ins., 985 So. 2d 56, 58 (Fla. 4th DCA 2008) (citing

J.J. Grumberg ); Merin Hunter Codman, Inc. v.

Wackenhut Corrs. Corp. , 941 So. 2d 396, 398 (Fla. 4th

DCA 2006) (citing J.J. Grumberg).

7 Id. (citing Beck v. Lazard Freres & Co, 175 F.3d 913,

914 (llth Cir. 1999)); Trowell v. S. Fin. Group, Inc., 315

Fed. Appx. 163, 165 (llth Cir. 2008)).

8 Id. at *9.

9 See note 4 (breach of contract decisions from the other

49 states — none of which included materiality as an

element required for recovery of damages in partial

breach of contract cases).

10 Hostway, 2010 WL 3604671 at *8.

11 Nonetheless, Judge Cohn felt compelled to include the

materiality requirement because the llth Circuit had

listed it as an element under Florida law. Hostway, 2010

WL 3604671 at *8-9 (citing Vega v. T-Mobile USA, 564

F.3d 1256, 1272 (llth Cir. 2009); Beck, 175 F.3d at 914).

12 Sir Arthur Conan Doyle, Silver Blaze, The Memoirs of

Sherlock Holmes (1892).

13 Found Health, 944 So. 2d at 194-95.

14 See Knowles v. C.I.T., 346 So. 2d 1042, 1043 (Fla. 1st

DCA 1977) (“It is elementary that in order to recover on

a claim for breach of contract the burden is upon the

claimant to prove by a preponderance of the evidence the

existence of a contract, a breach thereof and damages

flowing from the breach.”); see also A.R. Holland, Inc. v.

Wendco Corp., 884 So. 2d 1006, 1008 (Fla. 1st DCA

2004) (“In the proceeding below, it was Holland’s burden

to prove that (l) a contract existed, (2) the contract was

breached, and (3) damages flowed from that breach.”);

CapitolEnvtl. Services v. Earth Tech, 25 So. 3d 593, 596

(Fla. 1st DCA 2009) (“The injured party is entitled to

recover all damages that are causally related to the

breach so long as the damages were reasonably

foreseeable at the time the parties entered into the

contract.”).

15 Rollins, Inc. v. Rutland, 951 So. 2d 860, 876 (Fla. 2d

DCA 2006); Mettler, Inc. v. Ellen Tracy, Inc., 648 So. 2d

253, 255 (Fla. 2d DCA 1994); Cerniglia v. Davison

Chem., 145 So. 2d 254, 255 (Fla. 2d DCA 1962).

16 Havens, 117 So. 3d at 1181 (citing Rollins, 951 So. 2d

at 876) (emphasis added).

17 Natural Kitchen v. Am. Transworld, 449 So. 2d 855,

860 (Fla. 2d DCA 1984) (quoting 5 A. Corbin, Corbin on

Contracts §1010 at 79 (1964)).

18 Sublime, Inc. v. Boardman’s Inc. , 849 So. 2d 470, 471

(Fla. 4th DCA 2003).

19 See, e.g., Indem. Ins. v. Caylao, 130 So. 3d 783, 786

(Fla. 1st DCA 2014) (quoting 14 Steven Plitt, et al .,

Couch on Insurance §199.81 (3d ed. 2012) (discussing

“‘the fundamental principle of contract law that a

material breach by one contracting party excuses the

performance by the other party and that an immaterial

breach does not’”).

20 Restatement (Second) of Contracts §236(2) (1981).

21 See note 4.

22 In re Standard Jury Instructions — Contract & Bus.

Cases, 116 So. 3d 284, 306 (Fla. 2013) (‘‘[Defendant]

failed to do something essential which the contract

required [him] [her] [it] to do. [Defendant] did something

which the contract prohibited [him] [her] [it] from doing

and that prohibition was essential to the contract.”).

23 Id

24 Id. (emphasis added).

25 Knowles, 346 So. 2d at 1043.

26 Metter, 648 So. 2d at 255 (citing Perry v. Cosgrove,

464 So. 2d 664, 667 (Fla. 2d DCA 1985)).

27 Abbott Laboratories, 765 So. 2d at 740.

28 Murciano, 958 So. 2d at 423*24, from the Third

District and Friedman, 985 So. 2d at 58, from the Fourth

District. Murciano relies solely on Abbott Laboratories.

Friedman relies solely on J.J. Grumberg, 847 So. 2d at

1049, but that decision, too, relies solely on Abbott

Laboratories.

29 In re Standard Jury Instructions — Contract & Bus.

Cases, 116 So. 3d 284, 287 (Fla. 2013).

In this case the contract is not valid; therefore, It can not

be a breach of contract

Zimmerman v. Diedrich

97 So. 2d 120 (1957)

Frieda ZIMMERMAN, Appellant,

DIEDRICH, Appellee.

Supreme Court of Florida.

George

In the pleading it was averred that the appellant and

appellee entered into a contract for the sale by the

appellee, and the purchase by the appellant, of certain

property described as "The South 10 acres, more or less,

of the South Three Quarters of the West Half of the

Southwest Quarter of the Northeast Quarter, of Section

25, Township 43 South, Range 42 East" for the sum of

$22,000.

The chancellor concluded that the contract was not

enforceable by specific performance because of failure to

comply with Sec. 689.01, Florida Statutes 1955, F.S.A.,

since the signature of but one witness appeared upon it,

and he commented that in his opinion the requirements

of this statute are supplemental to those of Sec. 725.01,

Florida Statutes 1955, F.S.A.

The appellant insists that compliance only with Sec.

725.01, supra, is necessary and that this court so held in

Lente v. Clarke, 22 Fla. 515, 1 So. 149, 151, when it was

stated that Sec. 1, page 214 of McClellan's Digest related

to present conveyances of title of certain interests in

land "and not *122 to agreements or contracts to convey

the same in the future." This was the law that has now

become, with certain changes to which we will presently

refer, Sec. 689.01, supra. In that case Sec. 1, page 208 of

McClellan’s Digest was said to require neither witnesses

nor a seal to a contract in order to hold the person to an

obligation to convey in the future. This section was the

predecessor of Sec. 725.01, supra.

It is true that in the case of Hammond v. Hacker, 93 Fla.

194, 111 So. 511, cited by appellant, signatures to the

instrument involved were witnessed by only one person

but it was purely by inference that the case held the

execution of the contract sufficient for the pivotal point

was the adequacy of the description, and the question of

proper attestation was not directly presented or decided.

In another case, Simons v. Tobin, 89 Fla. 321, 104 So.

583, also cited by appellant to support her position that

no witnesses to a contract for deed are needed to render

the instrument enforceable by specific performance, the

question of lack of witnesses was not raised but the court

held that a contract formed by an exchange of letters

and telegrams could be specifically enforced. We agree

with the appellant that in these circumstances names of

witnesses would not appear. The law announced in

Simons v. Tobin, supra, had been the holding in Meek v.

Briggs, 80 Fla. 487, 86 So. 271.

All the decisions to which we have alluded were

rendered prior to the year 1941 when, as the appellant

candidly advises us, the legislature amended Sec.

689.01, supra, by substituting the word "instrument" for

the word "deed". The question then arises whether or not

the substitution amounted to a requirement that all

contracts for deed, as well as deeds, be executed in the

presence of two witnesses.

Advert to three decisions rendered by this court, after

the adoption of the amendment, which the appellee

contends support the view of the chancellor that more

formality in the execution of agreements for deeds, in

order to make them specifically enforceable, was made

necessary- Scott v. Hotel Martinique, Inc., Fla., 48 So. 2d

160; Abercrombie v. Eidschun, Fla., 66 So. 2d 875; and

Cox v. La Pota, Fla., 76 So. 2d 662.

In the first of these three cases, Scott v. Hotel

Martinique, Inc., supra, the court held that a contract

for sale of homestead property could be specifically

enforced if executed by the husband and wife in the

presence of two witnesses. The court referred to the

opinion in Jacobs v. Berlin, 158 Fla. 259, 28 So. 2d 539,

in which it was written that part of the premises

involved constituted a homestead and there could be no

specific performance to convey that part, and inasmuch

as the part that was homestead could not be isolated, the

bill for specific performance was properly dismissed.

Obviously the court recognized a distinction between the

prerequisites of a contract to convey homestead and non

homestead property, in order to make the contract

enforceable by specific performance.

In the second case, Abercrombie v. Eidschun, supra, the

court again dealt with homestead property and held that

the chancellor erred when he denied a motion to dismiss

a complaint in which was sought specific performance of

a contract which had not been acknowledged and to the

signatures of which there was but one witness.

In the third case, Cox v. La Pota, supra, the court again

considered a contract to sell homestead property and it

was held that the sellers were estopped to deny that the

contract was enforceable since they had signed it and

surrendered it to their own broker for the purpose of

obtaining the signatures of witnesses before forwarding

the instrument to the purchasers, and by their action

had caused the buyers to expend money and materially

change their position. The only statute cited in the

opinion was Sec. 689.01, supra. But it *123 is plain from

a study of expressions of this court on the subject, and

especially from the very decision, Scott v. Hotel

Martinique, Inc., quoted at length in Abercrombie v.

Eidschun, supra, that the controlling law was Secs. 1

and 4 of Article X of the Constitution, F.S.A. The court

observed that Sec. 708.07, supra, when amended "did

not dispense with the requirement of two subscribing

witnesses but only with the formal requirement of

acknowledgment."

Before the amendment in 1947, Sec. 708.07, supra,

which was titled "Specific performance against married

woman," contained the provision that coverture should

not prevent a decree of specific performance against

husband and wife of an agreement to sell her property or

relinquish her right of dower but that no such contract

could be "enforced unless * * * executed and

acknowledged in the form prescribed for conveyances of

her real property and for relinquishment of dower." So at

this place in the history of the legislation a contract to

convey a married woman's separate estate or to

relinquish her dower had to bear her separate

acknowledgment, Sec. 693.03, Florida Statutes 1941,

F.S.A. At the time it was also the law of the state that an

estate or interest of freehold could not be created or

granted save by an instrument in writing "signed in the

presence of two subscribing witnesses * *

Sec. 689.01,

Florida Statutes 1941, F.S.A.

In 1947, Sec. 708.07, supra, was amended by

substituting for the requirement that a contract to

convey a married woman's separate property or to

relinquish her dower be executed and acknowledged in

the manner prescribed for conveyance of such property

and relinquishment of dower the provision that

coverture would not prevent a decree for specific

performance of the contract "regardless of whether the

same [was] acknowledged or not."

From an examination of the cases cited by the appellee,

it is plain that the court purposed to require as much

formality in the execution of contracts for the sale of

homestead property as must be followed in the execution

of contracts for the sale of the separate property of a

married woman or the relinquishment of her dower in

order to make the agreements enforceable by specific

performance.

This is apparent from the blending in the opinions of the

provisions of Secs. 1 and 4 of Article X of the

Constitution and the provisions of Sec. 708.07, supra,

before and after it was amended. This statute relates to

coverture as an impediment to decrees for specific

performance against a husband or wife, or both, for the

sale of the property of the wife or the relinquishment of

her right of dower. Before the amendment such a

contract had to be executed in the presence of two

witnesses and acknowledged by the wife; after the

amendment an acknowledgment was no longer

necessary. If the statute is construed literally, it does not

apply to homestead property. But the court seems to

have resorted to this statute as the one defining the

manner in which alienation could eventually be

accomplished by an instrument "duly executed" as

specified in Sec. 4 of Article X of the Constitution. It is

true that in that section no mention is made of contracts

to sell, but only of deeds and mortgages. We apprehend

that the writers of the opinions had in mind that if the

execution of contracts to sell homesteads were not so

formalized, the transfer of homestead property,

sacrosanct as it is, could be eventually effected by decree

of *124 specific performance, although the contract

forming the basis of such a transfer would have small

resemblance to the formality with which it was intended

that conveyances of homesteads should be accomplished.

Sec. 689.01

supra

applies to conveyances as

distinguished from contracts to convey, but in Cox v. La

Pota, supra, the writer referred to that statute in

determining what was necessary to an enforceable

contract to convey a homestead.

In conclusion after a careful study of the Constitution

and the decisions, and the statutes cited in the decisions,

that the court meant that agreements to convey

homestead property must, to be specifically enforceable,

be signed in the presence of two witnesses as required by

Sec. 689.01, supra, for valid conveyances, and by Sec.

708.07, supra, for enforceable contracts to convey the

separate property of married women and to relinquish

dower.

Secs. 689.01 and 725.01, supra, must be read together

and that therefore two witnesses to signatures on

contracts for deed are in all cases a prerequisite to the

remedy of specific performance. If only the latter statute

is followed, the contract would yet be unenforceable

unless the former is followed also. Such a ruling would

be inconsistent with the decision that a contract could be

formed by correspondence, signed by "the party to be

charged," as was held in Meek v. Briggs and Simons v.

Tobin, both supra [80 Fla. 487, 86 So. 272].

The decisions in these two cases have not become

inapposite by the passage of the 1941 amendment to Sec.

689.01, supra, because as late as 1952 in the case of

Mehler v. Huston, Fla., 57 So. 2d 836, this court held, as

it had in Meek v. Briggs and Simons v. Tobin, both

supra, that contracts growing out of an exchange of

correspondence could be specifically enforced.

In conclusion after an earnest effort to reconcile

decisions with statutes and with each other that a

contract for sale of realty must, to be enforceable, bear

two witnesses if the property to be conveyed is

homestead, or the separate property of a married

woman, or if the relinquishment of dower is to be

effected! that the two statutes first cited do not

implement each other in all instances.

In the present case, the seller contends that the sales

contract is not enforceable because no all title holders

signed it! that a valid deed was signed a year before the

specific performance lawsuit, and therefore this

invalidated the sales contract. Therefore, she argues, the

contract lacked mutuality of obligation and was

unenforceable and void.

One party to a contract could not obtain specific

performance if that remedy was unavailable to the other

party. (See, e.g., Roy v. Pos (1920) 183 Cal. 359, 364 [191

P. 542].) However, the Restatement of Contracts rejected

this rule. "The fact that the remedy of specific

enforcement is not available to one party is not a

sufficient reason for refusing it to the other party."

(Rest., Contracts, § 372, subd. (l). See also 7 Witkin,

Summary of Cal. Law (8th ed. 1974) pp. 5274-5276.)

In the present case, the seller contends that the trial

court exceeded its jurisdiction when it "Strike" the

Warranty Deed signed by Petitioner/ Seller given right

of the property title to a 3rd party Guillermo La Torre .

The judgment of the trial court is affirmed, [l] The trial

court based its decision on the fact that appellant wife

did not sign the purchase agreement, and that, as a

consequence, had the respondents brought this action for

specific performance, appellants would have been able to

avoid the contract. The trial court relied on Wagner v.

Peshastin Lbr. Co. (1928), 149 Wash. 328, 270 Pac. 1032,

wherein this court quoted from Pomeroy’s Specific

Performance of Contracts (3d ed.), § 165, as follows:

"'... if the right to the specific performance of a contract

exists at all, it must be mutual; the remedy must be

alike attainable by both parties to the agreement.”’

The trial court concluded that the contract must be such

that at the time it is entered into it is enforceable by

either of the parties against the other.

In the present case we cannot agree with the trial court’s

conclusion respecting the legal significance of the failure

of the appellant wife to sign the contract in the first

instance. In Leroux v. Knoll (1947), 28 Wn. (2d) 964, 184

P. (2d) 564, which, like the case at bar, was an action for

specific performance of a real estate contract, the

plaintiff-purchaser did not sign the earnest-money

receipt. The court, in granting specific performance,

cited Western Tbr. Co. v. Kalama River Lbr. Co., 42

Wash. 620, 85 Pac. 338, as authority for its decision. In

Western Tbr. Co. v. Kalama River Lbr. Co., supra, the

court quoted with approval from 2 Warvelle, Vendors, p.

748:

"'Equity will not direct a performance of the terms of the

agreement of one party when, at the time of such order,

the other party is at liberty to reject the obligations of

such agreement! yet, as in a case where an agreement

which the statute of frauds requires to be in writing has

been signed by one of the parties only, or when the

contract, by its terms, gives to one party a right to the

performance which he does not confer upon the other,

upon the filing of a bill for enforcement in equity by the

party who was before unbound, he thereby puts himself

under the obligation of the contract. The contract then

ceases to be unilateral; for by his own act the unbound

party makes the contract mutual, and the other party is

enabled to enforce it.'"

Contracts which convey or encumber community realty

and which the wife does not sign are not void. They are

merely voidable, and it is the wife who has the power of

avoidance. She may, as she wishes, either accept or

reject *775 the voidable action of her husband. Stabbert

v. Atlas Imperial Diesel Engine Co. (1951), 39 Wn. (2d)

789, 238 P. (2d) 1212. In the case at bar the wife, by

joining with her husband in bringing this action for

specific performance, has chosen to accept and ratify the

voidable action of her husband.

I dissent for the following reasons(l) It is conceded that the contract involved in this

proceeding was for the sale of real property owned by

appellant husband and wife as community property, and

that the wife did not sign the contract. A contract to sell

real estate is an encumbrance upon the land. Culmback

v. Stevens, 158 Wash. 675, 291 Pac. 705 (1930). See,

also, Griffith v. Whittier, 37 Wn. (2d) 351, 223 P. (2d)

1062 (1950); Peterson v. Paulson, 24 Wn. (2d) 166, 163 P.

(2d) 830 (1945). By statute, the wife is an indispensable

party to the sale, conveyance or encumbrance of

community real estate. RCW *778 26.16.040. Since it is

conceded that an indispensable party did not sign the

instrument, it is unenforcible and void as a contract of

sale.

"Since the remedy at law for breach of contract is

generally by way of compensatory damages, ordinarily a

complainant coming into equity for specific performance

must show that a recovery of damages for breach of the

contract would not constitute an adequate remedy." 49

Am. Jur. 21, § 12.

(4) Finally, whether a court will order specific

performance of a contract or leave one to his remedy at

law rests within the sound discretion of the trial court.

Cascade Tbr. Co. v. Northern Pac. R. Co., 28 Wn. (2d)

684, 184 P. (2d) 90 (1947), and cases and authorities

cited.

Following trial of these issues the court made findings,

concluded there from that plaintiff had no cause of

action for specific performance, and entered judgment

for defendants.

That plaintiff has suffered no damage as a result of the

failure of consummation of the agreement described in

paragraph I hereof or as a result of defendants' refusal

to consummate said agreement! that if plaintiff had

suffered any damage for any such reason, and if she had

any cause of action against defendants or either of them

for any such damage, she would have an adequate

remedy at law, and that any such damage could be fully

compensated by money."

Since it was the duty of plaintiff to prove the fairness of

the contract and the adequacy of the consideration

passing to defendants, in the absence of any evidence on

those issues the court would have been warranted in

making findings thereon in favor of defendants (Glassell

v. City of Los Angeles, (1930) 106 Cal. App. 395, 407

[291 P. 227]; Kohner v. National Surety Co., (1930) 105

Cal. App. 430, 439-40 [287 P. 510]), and if there were

such findings they would furnish support for the

judgment.

The Due Process Test

This Court has established what essentially a two-is

tiered analysis for due process challenges to conduct

which, like the one in this case, involves property rather

than liberty interests. The first “tier” involves a two-fold

inquiry: (l) an examination of whether there has been a

significant deprivation or threat of a deprivation of a

property right, see Fuentes v. Shevin, 407 U.S. 67

(1972), and (2) an examination of whether there is

sufficient state involvement of that deprivation to

trigger the Due Process Clause, see Lugar v. Edmondson

Oil Co., 457 U.S. 922 (1982). If there is state action and

if that action amounts to the deprivation or threat of a

deprivation of a cognizable property interest, the Court

proceeds to the second “tier” to then determine what

procedural safeguards are required to protect that

interest. Connecticut v. Doehr, 501 U.S. 1 (1991).

The Court traditionally uses the three-factor test first

discussed in Mathews v. Eldridge, 424 U.S. 319 (1976), to

assess what safeguards are necessary to pass muster

under the Due Process Clauses of the Fifth and

Fourteenth Amendments. The Mathews analysis weighs

(l) “the private interest that will be affected by the

official action”; (2) “the risk of an erroneous deprivation

of such interest through the procedures used, and the

probable value, if any, of additional or substitute

safeguards”; and (3) “the Government’s interest,

including the function involved and the fiscal and

administrative burdens that the additional or substitute

procedural requirement would entail.” 424 U.S. at 335;