FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D2022-0193

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LINDA O’DONNELL,

Appellant,

v.

JAMES E. LEE, II, and PAIGE J.

LEE,

Appellees.

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On appeal from the Circuit Court for Franklin County.

Jonathan Sjostrom, Judge.

June 5, 2024

WINOKUR, J.

Linda O’Donnell (“O’Donnell”) executed a contract with James 

and Paige Lee (“the Lees”) for the sale of real property located on 

St. George Island. O’Donnell was the buyer; the Lees were the 

sellers. Less than 30 days after execution, O’Donnell sued the Lees 

for specific performance. After a bench trial, the lower court ruled 

in favor of the Lees. O’Donnell appeals that decision. For the 

reasons that follow, we reverse the lower court’s decision and 

award appellate attorney’s fees to O’Donnell.
2

I

Jerry Ison (“Ison”) served as the property manager for the 

Lees’ house on St. George Island. Jeff Galloway (“Galloway”) 

served as the real estate broker for the transaction at issue. 

Barbara Iman (“Iman”) served as Galloway’s business manager.

According to the Lees, they decided to sell their house because 

they faced six-figure medical bills. So, in April 2021, they reached 

out to Ison for help selling their house. Ison then contacted 

Galloway to inquire about potential buyers. Galloway then spoke 

with O’Donnell, who submitted an offer. Representing both sides 

to the transaction, Galloway prepared a real estate contract for the 

Lees and O’Donnell to sign.

On April 19, 2021, the parties executed the “As Is” Residential 

Contract for Sale and Purchase of the St. George Island property 

(“the contract”). The contract listed the purchase price at $1.450

million with an initial deposit of $10,000 due within three days of 

execution. The contract identified the closing date as May 31, 2021.

The contract authorized specific performance in the event of a 

default by the sellers. It also authorized prevailing party attorney’s 

fees.

The contract stated that the escrow funds would be delivered 

to an escrow agent “TBD by seller.” Galloway explained at trial 

that he listed the escrow agent “TBD by seller” because “in this 

offer, we asked the seller to select and pay for the title search and 

title insurance so that’s why I didn’t know who they wanted to 

use.” Galloway did not believe he had the authority to identify an 

escrow agent for the transaction. Indeed, in their response to 

interrogatories, the Lees admitted that, under the express terms 

of the contract, they alone had the authority to identify the escrow 

agent.

On April 21, 2021, a Commercial Portfolio Manager with 

Synovus Bank in Tallahassee signed a letter stating: “Linda 

O’Donnell has adequate funds and creditworthiness with Synovus 

Bank to purchase [the property on St. George Island].” O’Donnell, 

then, sent an email to Iman and Galloway, requesting a copy of the 

contract.
3

The following day, Iman sent an email to O’Donnell stating: 

“Attached is the fully executed contract for . . . your records. I’ll 

check and send you the title agent name in a minute for your 

escrow check.” However, Iman never followed up with O’Donnell 

to identify the escrow agent.

After learning that insurance would cover a lot of their 

medical bills, James Lee “convinced [Paige Lee] that we did not 

need to sell this house from a financial standpoint.” Appellees then 

signed a Notice of Termination letter, which read as follows:

April 22, 2021

Jeff Galloway Real Estate

45 E. 1st Street

St. George Island, FL 32328

RE: Notice of Termination

Dear Jeff:

Please consider this correspondence formal notice of 

termination of the proposed contract for the sale of [the 

property on] St. George Island, Florida.

Unfortunately, and with much regret, our family is 

enduring personal and medical issues that make such a 

transaction impossible at this time. This proposed deal 

will not close. We wish to inform all parties now so they 

may pursue other opportunities. We appreciate your 

understanding during this difficult time.

If you have any questions, please feel free to contact us.

Very truly yours,

James E. Lee II 

Paige S. Lee

(emphasis supplied).
4

The termination letter did not mention O’Donnell’s failure to 

place funds in escrow. During his trial testimony, James Lee 

explained the omission as follows: “I didn’t think that was 

necessary and I didn’t want to ruffle Ms. O’Donnell’s feathers 

because my full expectation was she was going to go buy another 

house, so I didn’t want to say . . . you breached.” James Lee thought 

that, after receiving the letter, O’Donnell would “walk” away from 

the deal and purchase another property on St. George Island.

According to O’Donnell, Ison sent Galloway a picture of the 

termination letter on April 22, 2021; and, Galloway sent a picture 

of the letter to O’Donnell that same day. James Lee testified that 

he did not send the termination letter until April 23, 2021. 

However, his testimony conflicts somewhat with the Lees’ 

response to interrogatories, wherein the Lees repeatedly admitted

that “legal notice of termination was given by [them] to [their] Real 

Estate Agent on April 22, 2021, via certified mail.”

On April 23, 2021, James Lee sent an email to Jeff Galloway 

with the subject line “Termination letter.” The Notice of 

Termination letter was attached to the email, which was 

Galloway’s first direct communication from the Lees. When 

O’Donnell spoke with Galloway over the phone about the 

termination letter, Galloway said “we don’t know who their escrow 

agent is going to be, [so] send the money to Kristy [Banks].”

At 9:56 a.m., Iman sent an email to Kristy Banks (“Banks”) 

stating: “Please start a file on this contract and email Linda 

O’Donnell wiring instructions for her escrow deposit.”

At 10:36 a.m., Banks’ assistant sent an email to O’Donnell 

that included “wiring instructions for sending Escrow in 

connection with purchase of the [St. George Island] property.”

At 11:34 a.m., O’Donnell sent an email to Chattie Winton with

Synovus Bank and Lisa Burns with Gulfvacay, stating: “another 

$10,000 wire please.” O’Donnell sent the email “to effectuate a wire 

transfer for the purpose of posting the deposit under the contract.”
5

Sometime between 11:34 a.m. and 5:55 p.m., O’Donnell 

transferred $10,000 from her checking account to Banks as the 

escrow agent for the real estate transaction. 

At 5:55 p.m., Banks sent an email to Iman, with O’Donnell 

and Galloway carbon copied on the email.

On April 26, 2021, Banks signed an Escrow Deposit Receipt 

Verification, indicating receipt of $10,000 in escrow funds on April 

23, 2021.

On April 29, 2021, O’Donnell (through counsel) sent her first 

demand letter to the Lees, demanding that the Lees “retract [their] 

April 22, 2021, letter and close on the contract according to its 

terms.”

On May 6, 2021, O’Donnell (through counsel) sent her second 

demand letter to the Lees, demanding that the Lees “honor the 

contract and close according to its terms.”

On May 17, 2021, O’Donnell filed a Complaint for Specific 

Performance, requesting that the trial court direct the Lees “to 

perform the Contract and to award . . . reasonable attorney fees.” 

Citing Sisco v. Rotenberg, 104 So. 2d 365, 375 (Fla. 1958), 

O’Donnell asserted that, at all times, she “was ready, willing and 

able to pay” the purchase price for the St. George Island property.

She later amended her complaint, seeking specific performance 

and lost profits and rent.

The Lees answered and raised an affirmative defense. In 

pertinent part, the Lees asserted that O’Donnell “had not complied 

with her obligations under the contract [because she] failed to pay 

the deposit required by the contract by the deadline required by 

the contract.” O’Donnell replied to this affirmative defense by 

asserting that she “[was] not responsible for any delay in the 

delivery of the deposit caused by the wrongful and willful refusal 

of [the Lees] to designate the escrow agent in a timely manner.” 

On October 13, 2021, the Lees filed a response to 

interrogatories. In that response, the Lees admitted to the 

following facts:
6

• “The terms of the proposed contract specify that the 

escrow agent was ‘TBD’ by Defendants.”

• “Selection of escrow agent was a vital term of the 

proposed contract . . .”

• “Selection of escrow agent was not made by Defendants

before proposed contract termination.”

• “The proposed contract was terminated before 

Defendants were required to determine an escrow agent.”

• “The earnest money was ‘supposedly’ deposited by 

Plaintiff only after legal notice of termination was given 

by Defendants . . . to an escrow agent not determined by 

Defendants, outside the terms of the proposed contract.”

• “Neither Plaintiff nor Defendants’ Real Estate Agent 

have identified ‘supposed’ escrow agent to Defendants. 

Pursuant to proposed contract, it was not Plaintiff’s or 

Defendants’ Real Estate Agent’s determination to make.”

(emphases supplied). At least 25 times in the 9-page response, the 

Lees admitted that Galloway was “Defendants’ Real Estate 

Agent.” And the first time that expression appeared in the 

response, the Lees highlighted that description of Galloway by 

emphasizing the text in bold to read: “Defendants’ Real Estate 

Agent.”

On December 9, 2021, the lower court conducted a one-day 

bench trial. During opening statements, O’Donnell asserted that 

the Lees “breached their contractual obligation to identify an 

escrow agent and thereby prevent[ed] [O’Donnell] from making the 

initial deposit in a timely fashion.” The Lees asserted that, due to 

the time is of the essence clause of the contract, O’Donnell’s failure 

to place the funds in escrow “[was] a material breach of the 

contract.”
7

During her closing argument, O’Donnell reiterated that the 

Lees—and the Lees alone—had the contractual obligation to 

identify the escrow agent:

The contract by its plain terms required the sellers 

to identify the escrow agent. It wasn’t the responsibility 

of the realtor/broker to identify the escrow agent 

according to the plain terms of the contract. It wasn’t 

Linda O’Donnell’s responsibility to identify the escrow 

agent.

The contract by its plain terms says that the escrow 

agent was to be determined by the sellers. They did not 

do so in a timely fashion thereby preventing my client 

from making the initial deposit.

According to O’Donnell, the Lees’ failure to identify the escrow 

agent prevented O’Donnell from satisfying her obligations under 

the contract: “The only reason this case, this contract has not 

closed is because the sellers prevented [O’Donnell] from 

performing.”

During their closing argument, the Lees pointed to 

O’Donnell’s ability to identify an escrow agent for herself on April 

23, 2021, as proof that “it’s just not true that the sellers’ inaction 

prevented the buyer from posting the deposit.” Of note, this 

argument conflicts with the Lees’ interrogatory response, in which 

they repeatedly admitted that:

The earnest money was “supposedly” deposited by 

Plaintiff only after legal notice of termination was given 

by Defendants to Defendants’ Real Estate Agent on 

April 22, 2021, via certified mail and on April 23, 2021, 

at 9:50 A.M. via email, to an escrow agent not 

determined by Defendants, outside the terms of the 

proposed contract.

(emphasis supplied).

According to the Lees, “the first breach in [the] contract was 

the Plaintiff’s breach which justified the Defendants’ termination.”
8

As to the “TBD by the seller” language of the contract, the Lees 

argued that it was Galloway’s fault that they failed to identify an 

escrow agent:

[A]nd the evidence that the Court has heard is that Mr. 

Galloway was, whether he had a duty to or not, may be 

the subject of a different action on a different day, but he, 

in fact, did not take any affirmative steps to assist either 

of these parties quite frankly in, in getting, in getting this 

transaction, you know, postured where, where it needed 

to be.

In short, the Lees blamed Galloway for their failure to perform.

In ruling for the Lees, the lower court concluded that “there 

was barely a contract here” because “the person in the middle of 

this contract, Mr. Galloway, never in his entire life spoke to the 

person who was supposed to be his client, which is . . . the Lees.” 

As a result, the trial court ruled “that the terms of the contract . . . 

can’t be construed against” either party.

As to any repudiation of the contract by the Lees prior to the 

expiration of the three-day escrow identification period, the trial 

court determined that the date of the termination letter did not 

matter: “[S]o the fact that he wrote a letter on the 22nd, even if, 

even if the intention was there to terminate, the letter is not 

effective until sent in my, in my view and so that’s not a, that’s not 

a breach.” (Emphasis supplied.) Ultimately, the trial court found 

that “[t]here wasn’t a breach by the Lees before the three days 

ran.” 

In the one-page written order that followed, the lower court 

denied O’Donnell’s request for specific performance because 

O’Donnell “failed to comply with her contractual obligation to pay 

the initial deposit required by the contract by the deadline 

required by the contract.”
9

II

In her initial brief, O’Donnell essentially raises three 

arguments why the trial court erred when it ruled in favor of the 

Lees:

• “The lower tribunal erred by ruling that Appellees did 

not breach the sales contract prior to escrow deposit 

deadline; Appellees had a duty to identify the escrow 

agent and their failure to do so wrongfully prevented 

Appellant from timely complying with the terms of the 

escrow provision.”

• “Appellees also waived strict enforcement of the time is 

of the essence provision as it relates to the escrow 

deposit.”

• O’Donnell “is entitled to specific performance of the 

contract [as well as] lost rents and profits.”

In their answer brief, the Lees essentially raise three 

arguments why the trial court did not err when it ruled in their 

favor:

• “The trial court correctly found the buyer materially 

breached the contract by failing to tender the deposit 

before the contract’s deadline.”

• “Sellers did not waive the ‘time is of the essence’ clause 

when they terminated the contract the day after the 

deposit was due without referencing that clause in the 

termination letter.” 

• “The trial court did not abuse its discretion in denying 

specific performance and denying buyer’s related claim 

for lost rents and profits.”

The Lees also raised the following sub-arguments in support 

of their main argument that O’Donnell breached the contract first:
10

• “Missing a payment deadline when the contract says time is 

of the essence is a material breach. But the selection of the 

escrow agent is a minor and administrative provision of the 

contract. The failure to comply with a minor, administrative, 

and nonessential provision of the contract does not 

constitute a material breach.”1

• “Buyer did not try to contact Sellers about the identification 

of the escrow agent. Nor did Buyer’s broker.”2

• “Buyer could have paid the deposit on time without Sellers 

designating an escrow agent.”3

1 The Lees’ claim that identification of the escrow agent was 

“a minor and administrative provision of the contract” conflicts 

with their response to interrogatories, wherein the Lees admitted 

that “[s]election of escrow agent was a vital term of the proposed 

contract.”

2 The Lees’ characterization of Galloway as the “Buyer’s 

broker” conflicts with their response to interrogatories, wherein 

the Lees admitted at least 25 times that Galloway was 

“Defendants’ Real Estate Agent.”

3 The Lees’ claim that O’Donnell “could have paid the deposit 

on time without Sellers designating an escrow agent” conflicts with 

their response to interrogatories, wherein the Lees admitted:

The earnest money was “supposedly” deposited by 

Plaintiff only after legal notice of termination was given 

by Defendants to Defendants’ Real Estate Agent on April 

22, 2021, via certified mail and on April 23, 2021, at 9:50 

A.M. via email, to an escrow agent not determined by 

Defendants, outside the terms of the proposed contract. 

(emphasis supplied).
11

III

The trial court committed reversible error when it determined 

that O’Donnell—not the Lees—breached the contract at issue in 

this case. As highlighted above, the Lees admitted to the following:

• Identification of an escrow agent was a material term of the 

contract;

• They alone were responsible for identifying an escrow agent;

and,

• They failed to identify an escrow agent.

Therefore, by their own admission, the Lees committed a material 

breach of the contract.4

With regard to a breach of contract, the terms “vital” and 

“material” are synonymous. See Beefy Trail, Inc. v. Beefy King 

Intern., Inc., 267 So. 2d 853, 857 (Fla. 4th DCA 1972) (“To 

constitute a vital or material breach a defendant’s nonperformance 

must be such as to go to the essence of the contract; it must be the 

type of breach that would discharge the injured party from further 

contractual duty on his part.” (emphasis supplied)).

As a general rule, “[t]he issue of whether an alleged breach is 

vital or material is reviewed as a question of fact.” Covelli Fam., 

L.P. v. ABG5, L.L.C., 977 So. 2d 749, 752 (Fla. 4th DCA 2008); see 

also Haiman v. Fed. Ins. Co., 798 So. 2d 811, 811 (Fla. 4th DCA 

2001) (“[M]ateriality is a question of fact to be determined by the 

trier of fact.”).

4 Because the Lees admitted to a material breach of the 

contract, we do not address whether the Lees should have been 

given additional time to perform; nor do we address whether 

O’Donnell should have been given additional time to place the 

necessary funds in escrow. See generally Lance v. MartinezArango, 251 So. 2d 707, 708–09 (Fla. 3d DCA 1971).
12

Following a bench trial, we ordinarily review a trial court’s 

findings of fact for competent, substantial evidence. See U.S. Bank 

Nat’l Ass’n as Trustee for C-Bass Mortg. Loan Asset-Backed 

Certificates, Series 2006-CB8 v. Qadir, 342 So. 3d 855, 859 (Fla. 

1st DCA 2022) (citing MTGLQ Inv’rs, L.P. v. Moore, 293 So. 3d 610, 

615 (Fla. 1st DCA 2020)).

In this case, however, the Lees are bound by their admission 

that they committed a material breach of the contract. See Holub 

v. Holub, 54 So. 3d 585, 587 (Fla. 1st DCA 2011) (“‘A party is bound 

by his or her admissions under oath, . . . [and] also bound by factual 

concession made by the party’s attorney before a judge in a legal 

proceeding.’” (quoting Dicus v. Dist. Bd. of Trustees for Valencia, 

734 So. 2d 563, 564 (Fla. 5th DCA 1999))).

Therefore, only a question of law remains. See Ramos v. Nw. 

Mut. Ins. Co., 336 So. 2d 71, 75 (Fla. 1976) (“The question of 

whether the failure to cooperate is so substantially prejudicial as 

to release the insurance company of its obligation is ordinarily a 

question of fact, but under some circumstances, particularly where 

the facts are admitted, it may well be a question of law.” (emphasis 

supplied)).

Accordingly, we hold that the trial court committed reversible 

error when it concluded that O’Donnell “failed to comply with her 

contractual obligation to pay the initial deposit required by the 

contract by the deadline required by the contract.” As their 

admission clearly indicates, the Lees—not O’Donnell—committed 

the material breach in this case.

On remand, the lower court can decide the appropriate 

remedy. See generally Jacobs v. Berlin, 28 So. 2d 539, 540 (Fla. 

1946) (“The matter of decreeing specific performance of a contract 

to convey land is one in which the court may exercise its sound 

judicial discretion and the enforcement is not a matter of course 

like the right to enforce a lien or judgment.”); see also Palm Lake 

Partners II, LLC v. C & C Powerline, Inc., 38 So. 3d 844, 851 n.9 

(Fla. 1st DCA 2010) (“Specific performance may be granted only 

when (1) the plaintiff is clearly entitled to it, (2) there is no 

adequate remedy at law, and (3) the judge believes that justice 
13

requires it.” (quoting Castigliano v. O’Connor, 911 So. 2d 145, 148 

(Fla. 3d DCA 2005))).

IV

The trial court erred when it found that O’Donnell—rather 

than the Lees—committed a material breach of the contract. On 

remand, the lower court can determine the appropriate remedy for 

the Lees’ breach.

REVERSED.

LEWIS and ROBERTS, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Thomas M. Shuler of the Law Offices of Thomas M. Shuler, P.A., 

Apalachicola; Kayla Scarpone of Carr Allison, Tallahassee, for 

Appellant.

James M. Durant, Jr. of Boyd & Durant, P.L., Tallahassee, for 

Appellees.