IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

RAYMOND N. SMITH AND KRISTY L. SMITH, 

Appellants, 

v. Case Nos. 5D21-1383 

 5D21-2174 

LT Case No. 2019-CA-018766

KEVIN CARLTON AND CIN CARLTON, 

Appellees. 

________________________________/

Opinion filed September 23, 2022

Appeal from the Circuit Court

for Brevard County, 

George Paulk, Judge. 

David G. Larkin and Jesse L. 

Kabaservice, of Fallace & Larkin,

L.C., Melbourne, for Appellants.

Allan P. Whitehead and Erika McBryde, 

of Frese, Whitehead & Anderson, 

P.A., Melbourne, for Appellees.

EDWARDS, J.
2

This case involves tons of trash, purloined gates, missing fences, and 

broken promises. Appellees, Kevin and Cin Carlton, contracted to sell their 

horse farm, complete with a barn, horse stalls, fences, and gates, to 

Appellants, Raymond and Kristy Smith. Appellants did a walk-through of the 

property prior to closing and saw that there was still a lot of trash around, 

despite Appellees’ written agreement to clear out the trash by closing. Shortly 

after closing, Appellants learned that the trash was still there and several 

sections of fence and gates had been removed, contrary to the terms of the 

contract. The trial court’s finding that Appellees thereby breached the 

contract is undisputed.1 Appellants appeal the court’s ruling that they had 

waived all remedies when they closed on the property. We hold that the trial 

court erred in finding waiver of Appellants’ right to seek money damages and 

reverse the judgment entered in favor of Appellees.2 We remand this matter 

for entry of judgment in favor of Appellants with damages based on the 

1 Appellees have not cross-appealed; thus, they are bound by the trial 

court’s findings and rulings set forth in the final judgment.

2 Since Appellees waived their affirmative defense of merger below, by 

raising the defense for the first time at trial, and because the trial court’s final 

judgment does not set forth sufficient factual findings to permit us to fully and 

independently consider the potential application of merger to this case, we 

decline to address Appellees’ tipsy coachman argument based on merger. 

See Boyd v. Boyd, 874 So. 2d 696, 698 (Fla. 5th DCA 2004); Foley v. Azam, 

257 So. 3d 1134, 1139 n.3 (Fla. 5th DCA 2018). 
3

evidence admitted during trial. We also reverse the award of attorney’s fees 

and costs in favor of Appellees and instruct the trial court to award Appellants 

their fees and costs. 

Background

Pre-contract Property Inspection

In June 2018, Appellees listed a twenty-five-acre farm located in Mims, 

Florida, (“the Property”) for sale. The Property was marketed as a working 

horse farm with a small house, a barn, paddock area, horse stalls, fencing, 

and separated pastures. Appellants were interested in purchasing the 

Property and inspected the Property prior to entering into a purchase 

contract. Appellants made it known to Appellees that they intended to keep 

horses on the Property. While there, Appellants spoke with the caretaker of 

the Property, a friend of Appellees, and learned that she kept her horses on 

the Property.

Contract

The parties entered into a standard Florida Bar/Florida Realtors “AsIs” contract for the Property. The contract specified that all improvements 

and fixtures existing on the Property at the time the initial offer was made 
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were included in the sale.3 The contract further required Appellees to have 

removed all trash from the Property by the time of closing. The contract 

contained a provision, paragraph 18(P), that required any modification or 

change to the contract to be in writing and signed by the party intended to be 

bound. It also contained in paragraph 18(Q) a provision that a party’s waiver 

as to one right would not constitute a waiver of any other provision or right.

Inspections

Before entering into the contract, Appellants observed that the 

Property was littered with trash and debris but was otherwise as described 

in the listing.4 The contract provided Appellants with the right to inspect the 

Property on two occasions. First, within ten days of the effective date of the 

contract, they could inspect the Property to determine if it was acceptable to 

them; if it was not, they could notify Appellees in writing, terminate the 

contract, and have their deposit returned. Appellants conducted this 

inspection and went forward with the contract. 

3 The contract form permitted listing of excluded improvements or 

fixtures, but the parties did not exclude anything. 

4 Appellees’ failed attempt at running a nursery on the Property had left 

old mowers, tractors, fans, a dilapidated greenhouse, scrap metal, a feed 

spreader, and thousands of plant pots on the Property.
5

Second, the contract permitted Appellants to perform a pre-closing 

walk-through inspection, on the day of or the day prior to closing, to confirm 

that all items of personal property remained and to verify that Appellees had 

continued to maintain the Property. Utilizing this provision, Appellants 

inspected the Property the day before closing and witnessed a hectic scene. 

There were several trucks and horse trailers on scene, the tenant who lived 

in the house on the Property was still collecting his belongings and preparing 

to leave, the caretaker was in the process of removing her horses from the 

Property, and there still was an overwhelming amount of trash and debris. 

Appellants, through their realtor, threatened to cancel the sale contract. 

They also offered to deal with the remaining trash and debris themselves in 

return for a reduction in the price, but Appellees rejected that offer. 

According to Mr. Smith’s trial testimony, Appellees’ realtor explained that 

they were working on removing all the trash before closing. Although the 

contract permitted Appellants to make a follow up walk-through on the date 

of closing, they did not do so prior to closing. 

Closing and Post-Closing

Despite what they observed the day prior, Appellants went through with 

the closing on November 16, 2018. Having already signed their papers, 

Appellants and one of the Appellees were not present at the closing. After 
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closing, Appellants drove to the Property and noticed for the first time that 

some gates and fencing had been removed and that there was still a vast 

amount of trash on the Property. Within days of closing, they threatened 

Appellees with legal action and when Appellees failed to respond, Appellants 

followed through with filing suit approximately three months after closing. 

Ultimately, a bench trial was conducted.

Purloined Gates and Missing Fences

According to the trial court, the caretaker of the Property removed 

some gates and fencing from the Property, claiming that she owned them.5

While the trial court found that the caretaker talked with Appellants prior to 

entering into the contract, it noted that she did not mention to Appellants that 

any of the gates or fences were hers or that she would be removing them.

Apparently, she took and was using those gates and fencing at another 

nearby property where she was now boarding her horses. The trial court 

confirmed that the fencing, fence gates, and horse stall gates were indeed 

fixtures for purposes of the sales contract and were necessary items for 

keeping horses on the Property. 

5 The caretaker testified to taking one small section of fence and one 

gate, while Appellants presented evidence of several sections of fence and 

as many as nine gates having gone missing between the pre-closing and 

post-closing inspections.
7

Tons of Trash

The trial court rejected Appellees’ argument that the meaning of “trash” 

was ambiguous; it found that Appellees clearly understood but breached 

their contractual obligation. Appellants testified that they used employees 

from the roofing company they owned to remove the remaining trash and 

debris, which required fifteen to twenty dumpster loads and three weeks to 

accomplish. 

Standard of Review

“We review de novo the trial court’s interpretation of a contract. 

Interpretation of a contract is a question of law, and an appellate court may 

reach a construction contrary to that of the trial court.” Whitley v. Royal Trails 

Prop. Owner’s Ass’n, 910 So. 2d 381, 383 (Fla. 5th DCA 2005) (internal 

citations omitted). However, “[t]he question of waiver is an issue of fact, for 

which a trial judge’s finding will be reversed ‘only if there is no competent, 

substantial evidence to support’ it.” WSG West Palm Beach Dev., LLC v. 

Blank, 990 So. 2d 708, 715 (Fla. 4th DCA 2008) (quoting Hill v. Ray Carter 

Auto Sales, Inc., 745 So. 2d 1136, 1138 (Fla. 1st DCA 1999)). “Competent 

substantial evidence is tantamount to legally sufficient evidence, and the 

appellate court will assess the record evidence for its sufficiency only, not its 

weight.” Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999).
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Analysis

Waiver is “the voluntary and intentional relinquishment of a known right 

or conduct which implies the voluntary and intentional relinquishment of a 

known right.” Raymond James Fin. Servs., Inc. v. Saldukas, 896 So. 2d 707, 

711 (Fla. 2005). Any contractual right can be waived. See id. “The elements 

of waiver are: (1) the existence at the time of the waiver of a right, privilege, 

advantage, or benefit which may be waived; (2) the actual or constructive 

knowledge of the right; and (3) the intention to relinquish the right.” Bishop 

v. Bishop, 858 So. 2d 1234, 1237 (Fla. 5th DCA 2003); see also Zurstrassen

v. Stonier, 786 So. 2d 65, 70 (Fla. 4th DCA 2001) (“A waiving party must

possess all of the material facts in order to constitute waiver.” (citation 

omitted)).

As there was no express waiver, the trial court implied waiver based 

on Appellants’ conduct. And “[w]hen a waiver is implied, the acts, conduct or 

circumstances relied upon to show waiver must make out a clear case.” See 

Kirschner v. Baldwin, 988 So. 2d 1138, 1142 (Fla. 5th DCA 2008) (citation 

omitted). Therefore, to constitute an implied waiver, there must have been 

a clear showing that Appellants voluntarily and intentionally relinquished their 

rights to the removal of all trash and inclusion of all fixtures on the Property. 
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See Raymond James Fin. Servs., 896 So. 2d at 711. The evidence here 

does not establish a clear showing. 

Waiver – Gates and Fencing

There is no evidence that Appellants knew, prior to or at the time of 

closing, that any gates or fencing were going to be removed. Furthermore, 

as soon as they became aware of the missing gates and fencing, Appellants 

complained to Appellees, threatened, and then promptly filed legal action on 

March 1, 2019. This is the antithesis of waiver. Thus, the trial court erred 

with regard to finding Appellants waived Appellees’ contractual obligation to 

convey all fixtures such as fencing, fence gates, and stall gates.

Waiver – Trash Removal

The trial court’s finding that Appellants waived the right to require 

Appellees to remove the trash is flawed for two reasons. First, the trial court 

misperceived the deadline for Appellees to remove the trash. Second, the 

trial court inexplicably found that the contract provided Appellants with a 

single remedy, cancellation or termination of the deal, when in fact the 

contract specifically permitted post-closing suits for money damages

regarding breaches of the contract. 

The contract specifically provided that “at Closing, [Appellees] shall 

have removed all personal items and trash from the Property . . . .” Thus, 
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Appellees were not obliged to remove all the trash prior to closing, nor could 

Appellants have declared a breach for their pre-closing failure to do so. The 

trial court also found that Appellants intended to enforce the trash removal 

requirement, but it found waiver, in part, because they delayed enforcement 

until after closing by suing for money damages. That finding ignores that 

Appellants’ right to a trash-free property only ripened at closing, regardless 

of what they noticed the day before closing.

Furthermore, “[m]ere delay is insufficient to support waiver.” O’Brien 

v. O’Brien, 424 So. 2d 970, 971 (Fla. 3d DCA 1983); see also Mercede v.

Mercede Park Italian Rest., Inc., 392 So. 2d 997, 998 (Fla. 4th DCA 1981)

(holding where landlord delayed ten months to make demand upon tenant 

for increased rent, “mere delay [wa]s insufficient to support a defense of 

either waiver or estoppel”); Goodwin v. Blu Murray Ins. Agency, Inc., 939 So. 

2d 1098, 1104 (Fla. 5th DCA 2006); Cnty. of Brevard v. Miorelli Eng’g, Inc., 

703 So. 2d 1049, 1052 n.4 (Fla. 1997) (“Waiver does not arise from 

forbearance for a reasonable time, but may be inferred from conduct or acts 

‘putting one off his guard and leading him to believe that a right has been 

waived.’” (quoting Gilman v. Butzloff, 22 So. 2d 263, 265 (Fla. 1945))). As 

previously noted, on the day before and the day after closing, Appellants 

made it clear that they were dissatisfied with and did not accept Appellees’ 
11

failure to remove the trash, and the suit was filed in just over three months 

following closing. 

Under these facts, there was no competent substantial evidence that 

Appellants unreasonably delayed enforcing their rights or that Appellees 

were lulled into inaction and led to believe that leaving tons of trash was 

acceptable. Thus, the trial court’s ruling was erroneous based on timing.

The second flaw in the finding of waiver is the trial court’s ruling that 

essentially found that Appellants had but a single remedy––namely, 

cancellation or termination of the contract. The trial court correctly noted that 

the sales contract gave Appellants several opportunities to inspect and the 

right to terminate the contract under certain circumstances. By not doing a 

follow-up pre-closing inspection on the day of closing, Appellants may have 

waived that right. Furthermore, by going through with closing, Appellants 

may have waived their right to terminate the contract as a remedy for 

Appellees’ breaches, although it is not clear that the contract provided such 

a remedy at that point. However, the anti-waiver provision found in 

paragraph 18(Q) does not support a finding that waiver of the right to inspect 

and the right to terminate somehow morphed into a waiver of Appellants’ 

other rights to require full performance by Appellees. 
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Additionally, paragraph 15(b) of the contract provides that even if 

Appellants, as the buyers, had sought return of their deposit from Appellees, 

as the sellers, on the day prior to or at closing, they could elect to do so 

without “thereby waiving any action for specific performance or damages 

resulting from [Appellees’] breach . . . .” 

Further, the trial court made no mention of paragraph 16 of the 

contract, which provides in part: 

16. DISPUTE RESOLUTION: Unresolved controversies, claims

and other matters in question arising out of or relating to this

Contract or its breach, enforcement or interpretation (“Dispute”)

will be settled as follows:

(a) [By mediation]6

(b) . . . Disputes not settled pursuant to this Paragraph

16 may be resolved by instituting action in the appropriate

court having jurisdiction of the matter. This Paragraph 16

shall survive closing or termination of this Contract.

It is clear, as Appellants argued, that the contract expressly provided 

them with remedies beyond termination, including specifically the remedy to 

initiate and pursue legal action for money damages. We find, as a matter of 

law, that the trial court did not properly interpret the contract and erred in 

6 Nobody raised the failure to pursue mediation as an issue below or 

on appeal.
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ruling that Appellants waived any contractual remedies other than any right 

to terminate the contract.

Conclusion

Accordingly, we conclude and hold that there was no competent 

substantial evidence supporting the trial court’s ruling that Appellants waived 

Appellees’ contractual obligation to ensure that all fixtures such as fencing, 

fence gates, and horse stall gates remained on the property as of closing. 

We further conclude and hold that there was no competent substantial 

evidence to support a finding of waiver based on delay by Appellants in 

enforcing their contract rights, in light of them providing written complaints 

and notice of intended legal action on the days prior to and immediately 

following closing and filing suit in little more than three months. Finally, we 

conclude and hold that the trial court erred as a matter of law in interpreting 

the contract to not permit Appellants to pursue a lawsuit seeking money 

damages, despite that remedy being clearly and expressly set forth in the 

contract. 

The judgment in favor of Appellees is hereby reversed as is the 

judgment awarding Appellees their attorney’s fees and costs. We remand 

this matter to the trial court for entry of a judgment in favor of Appellants and 

against Appellees with the amount of damages to be determined based upon 
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the evidence already presented during the bench trial. The trial court is 

instructed to grant Appellants’ motion for its reasonable attorney’s fees and 

costs incurred at trial. By a separate order, we grant Appellants’ motion for 

appellate attorney’s fees. As to both of those motions, the trial court shall 

determine what those reasonable fees are in further proceedings.

REVERSED and REMANDED.

EVANDER and WALLIS, JJ., concur.