Mitchell v. DiMare, 936 So. 2d 1178 (Fla. 5th DCA 2006). · Go Syfert
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Mitchell v. DiMare, 936 So. 2d 1178 (Fla. 5th DCA 2006). Cases Citing This Book View Copy Cite
“a condition precedent is an act or event, other than a lapse of time, that must occur before a binding contract will arise.”
17 citation events (17 in the last 25 years) across 5 distinct courts.
Strongest positive: GIULIANA LLANSO v. SHEDDF2-FL3, LLC, etc. (fladistctapp, 2022-05-18)
Top citers, strongest first. 13 distinct citers.
discussed Cited as authority (verbatim quote) GIULIANA LLANSO v. SHEDDF2-FL3, LLC, etc.
Fla. Dist. Ct. App. · 2022 · signal: see · quote attribution · 1 verbatim quote · confidence high
a condition precedent is an act or event, other than a lapse of time, that must occur before a binding contract will arise.
discussed Cited as authority (rule) Elliott v. Future Motion, Inc.
N.D. Cal. · 2025 · confidence medium
“A condition may be either a condition precedent to the 14 || formation of a contract or a condition precedent to performance under an existing contract.” 3 15 || Mitchell v. DiMare, 936 So. 2d 1178, 1180 (Fla. Dist.
discussed Cited as authority (rule) Sunshine Children's Learning Center, LLC v. Waste Connections of Florida, Inc.
S.D. Fla. · 2023 · confidence medium
“A condition may be either a condition precedent to the formation of a contract or a condition precedent to performance under an existing contract.” Mitchell v. DiMare, 936 So. 2d 1178, 1180 (Fla. 5th DCA 2006).
discussed Cited as authority (rule) Ramesh Cheruvoth v. Seadream Yacht Club Inc.
11th Cir. · 2021 · confidence medium
Under Florida law, “[a] condition may be either a condi- tion precedent to the formation of a contract or a condition prece- dent to performance under an existing contract.” U. Hous. by Dayco Corp. v. Foch, 221 So.3d 701, 704 (Fla. 3d DCA 2017) (quot- ing Mitchell v. DiMare, 936 So.2d 1178, 1180 (Fla. 5th DCA 2006)).
discussed Cited as authority (rule) MIRACLE HEALTH SERVICES, INC., A/A/O KIRENIA TAMAYO v. PROGRESSIVE SELECT INSURANCE COMPANY
Fla. Dist. Ct. App. · 2021 · confidence medium
“A condition may be either a condition precedent to the formation of a contract or a condition precedent to performance under an existing contract.” Id. (quoting Mitchell 6 v. DiMare, 936 So. 2d 1178, 1180 (Fla. 5th DCA 2006)).
discussed Cited as authority (rule) University Housing by Dayco Corp. v. Foch
Fla. Dist. Ct. App. · 2017 · confidence medium
“A condition may be either a condition precedent to the formation of a contract or a condition precedent to performance under an existing contract.” Mitchell v. DiMare, 936 So.2d 1178, 1180 (Fla. 5th DCA 2006).
discussed Cited as authority (rule) Land Company of Osceola County, LLC v. Genesis Concepts, Inc. (2×)
Fla. Dist. Ct. App. · 2015 · confidence medium
“A condition precedent is an act or event, other than a lapse of time, that must occur before a binding contract will arise.” Mitchell v. DiMare, 936 So.2d 1178, 1180 (Fla. 5th DCA 2006) (citing J.
discussed Cited as authority (rule) State Farm Mutual Automobile Insurance Company v. Robin Curran (2×)
Fla. · 2014 · confidence medium
However, this is incorrect because Florida also recognizes “a condition precedent to performance under an existing contract.” Mitchell v. DiMare, 936 So. 2d 1178, 1180 (Fla. 5th DCA 2006); see also Black’s Law Dictionary 334 (9th ed. 2009) (defining a “condition precedent” as “[a]n act or event, other than a lapse of time, that must exist or occur before a duty to perform something promised arises”).
discussed Cited as authority (rule) In re Standard Jury Instructions—Contract & Business Cases
Fla. · 2013 · confidence medium
A condition may be either a condition precedent to the formation of a contract or a condition precedent to performance under an existing contract.” Mitchell v. DiMare, 936 So.2d 1178, 1180 (Fla. 5th DCA 2006). 2.
cited Cited as authority (rule) Surgical Partners, LLC v. Choi
Fla. Dist. Ct. App. · 2012 · confidence medium
Mitchell v. DiMare, 936 So.2d 1178, 1180 (Fla. 5th DCA 2006).
discussed Cited "see" PEOPLE'S TRUST INSURANCE COMPANY v. KARLA SOTO ESPANA AND ROSALINDA SOTO
Fla. Dist. Ct. App. · 2021 · signal: see · confidence high
See Mitchell v. DiMare, 936 So. 2d 1178, 1180 (Fla. 5th DCA 2006) (“A condition precedent is an act or event, other than a lapse of time, that must occur before a binding contract will arise.” (citations omitted)).
discussed Cited "see" Eastern Atlantic Realty & Investment Inc. v. GSOMR LLC
Fla. Dist. Ct. App. · 2009 · signal: see · confidence high
See Mitchell v. DiMare, 936 So.2d 1178 (Fla. 5th DCA 2006) (where a agreement for the sale of real property expressly states that it is subject to a right of first refusal, no binding agreement can be formed unless the right of first refusal is not exercised).
cited Cited "see" Essex Insurance v. Zota
S.D. Fla. · 2009 · signal: see · confidence high
See Mitchell v. Dimare, 936 So.2d 1178 (Fla.App. 5th DCA 2006); Southern Internet Systems, Inc. ex rel.
Grant MITCHELL and Mitchell Realty, Inc., Appellant,
v.
W. Frank DIMARE and K.S. Toney, etc., Appellee.
5D05-1691.
District Court of Appeal of Florida, Fifth District.
Aug 25, 2006.
936 So. 2d 1178
Orfinger.
Cited by 14 opinions  |  Published

[*1179] Sean P. Sheppard, of Sheppard & Sheppard, P.A., St. Augustine, for Appellant.

Robert L. McLeod, II, of the McLeod Firm, St. Augustine, for Appellee.

ORFINGER, J.

Grant Mitchell, a licensed real estate broker, joined by his firm, Mitchell Realty, Inc. (collectively "Mitchell"), procured a contract from AY Ventures, Inc. for the purchase of a parcel of real property owned by K.S. Toney, Trustee of the K.S. Toney Living Trust. The property, however, was subject to a right of first refusal in favor of W. Frank DiMare, who, upon being advised of the offer from AY Ventures, chose to exercise that right and closed on the property. Mitchell then filed suit seeking a commission. On summary judgment, the trial court concluded that Mitchell was not entitled to a commission. Mitchell appeals that ruling. We affirm.

In 2002, DiMare and Toney entered into a written agreement, that gave DiMare "a right of first refusal to purchase the [property]... [o]n the same terms and conditions as that contained in any Bona Fide Offer to purchase, received by and acceptable to Toney." Sometime thereafter, Toney entered into a brokerage agreement with Mitchell regarding the same property. The brokerage agreement provided "it is understood that a right of 1st refusal may be existing on the property."

Mitchell proceeded to market the property, resulting in a contract for the purchase of the property between Toney and AY Ventures. Relevant to this dispute, the Toney/AY Ventures contract provided:

18. ADDITIONAL TERMS
....
B. Parties acknowledge that there is a "1st right of refusal" currently on the property by another purchaser.
[*1180] ....
E. Effective date will be when right of 1st refusal is rejected.

The contract also provided for a commission to be paid to Mitchell.

As he was required to do, Toney presented the AY Ventures contract to DiMare within the time provided for exercising the right of first refusal. DiMare elected to purchase the property on terms identical to the AY Ventures contract, except that no provision was made for any commission to Mitchell. After the DiMare/Toney transaction closed, Mitchell sued for a commission.

The brokerage agreement between Toney and Mitchell required Toney to pay a commission "[i]n the event the Property is sold, optioned, [or] contracted to be sold to [a] Prospect procured by [Mitchell]...." Mitchell claims that because he procured the AY Ventures contract that was accepted by Toney, he is entitled to a commission. We disagree because based on its plain language, no enforceable contract was formed between Toney and AY Ventures.

Mitchell's argument overlooks the fact that the AY Ventures/Toney agreement provided that it would become effective only when, and if, DiMare's right of first refusal was rejected. That never occurred, and, as a result, no binding contract was formed between Toney and AY Ventures. The condition was one precedent to the formation of the contract. A condition precedent is an act or event, other than a lapse of time, that must occur before a binding contract will arise. J. Calamari & J. Perrilo, Contracts, § 11-5 (3d ed. 1987); Restatement (Second) of Contracts § 250 (1981). A condition may be either a condition precedent to the formation of a contract or a condition precedent to performance under an existing contract. Calamari & Perrilo, supra. In the case of a condition precedent to formation, as here, the contract does not exist unless and until the condition occurs. In the case of a condition precedent to performance, a contract exists that may be enforced pursuant to its terms.

To avoid summary judgment, Mitchell points to the preprinted portion of the AY Ventures/Toney contract that provided "[t]he `Effective Date' of this Contract is the date on which the last of the parties initials or signs the latest offer." That provision, he argues, is inconsistent with the typed provision added by the parties, which states that the contract's effective date was the date on which the right of first refusal was rejected. That argument ignores the established rule that when written or typed provisions of a contract conflict with printed provisions, the written or typed terms ordinarily prevail if they cannot be reconciled. See Hurt v. Leatherby Ins. Co., 380 So.2d 432, 434 (Fla.1980); Allegheny Mut. Cas. Co. v. State, 176 So.2d 362, 365 (Fla. 2d DCA 1965). "The reason for the according of greater effect to the written or typed part as against the printed portion if they are inconsistent is that the written or typed words are the immediate language and terms selected by the parties themselves to express their meaning, while the printed form is intended for general use without reference to particular objects and aims." Allegheny Mut. Cas. Co., 176 So.2d at 365.

Here, no binding contract existed between Toney and AY Ventures because it plainly provided that the contract would not become effective unless the right of first refusal was rejected. Since that did not occur, Mitchell was not entitled to a commission under the brokerage agreement. Accordingly, we affirm the summary judgment. As a result, we need not[*1181] address the remaining issues raised by the parties.

AFFIRMED.

PALMER and MONACO, JJ., concur.