Abraham Bachtiar and Lian Lai v. Giselle Leonardo

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

ABRAHAM BACHTIAR and LIAN LAI,
Appellants/Cross-Appellees,

v.

GISELLE LEONARDO,
Appellee/Cross-Appellant.

No. 4D2024-2621

[June 3, 2026]

Appeal and cross-appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Mark Alan Speiser, Judge; L.T. Case No.
062022CA006874AXXXCE.

Kathryn Lee Ender of De Novo, Miami, Lilas Ayandeh of Ayandeh Law,
P.A., Fort Lauderdale, and Janice Lopez of Dinsmore & Shohl LLP, Miami,
for appellants/cross-appellees.

Daniel Adam Bushell of Bushell Law, PA, Fort Lauderdale, Robert E.
Ferencik, Jr. of Hinckley Allen Snyder, LLP, Plantation, and Giselle
Leonardo of Giselle Leonardo, P.A., Fort Lauderdale, for appellee/cross-
appellant.

MAY, J.

We have before us a real estate contract that got lost in translation as
the sellers appeal from a judgment for specific performance and damages.
The sellers argue the trial court erred in entering a judgment for the buyer
because the buyer was unable to close on the specified closing date and
was therefore in breach of the contract. We agree and reverse.

• The Facts

On March 13, 2022, the parties executed an “as-is” Residential
Contract for Sale and Purchase of a home. The contract set a closing date
of April 28, 2022, defined closing as the point when all required funds were
received and cleared, and all closing documents were delivered. The
contract stated that time was of the essence.
The contract included a one-day inspection period and an addendum
providing that the sellers would not provide a seller’s disclosure and would
not make repairs or concessions. The contract stated that any
modification must be in writing and signed by both parties.

The contract was contingent on the buyer obtaining financing. On
March 28, 2022, the buyer obtained a loan commitment. In mid-April, a
review appraisal reduced the property value. On April 27, 2022, the day
before the scheduled closing, a revised appraisal was transmitted to the
buyer.

Because of the revised appraisal, the bank advised the buyer on April
28, 2022, that it could not approve her original loan request and instead
issued a counteroffer for a reduced loan amount. The lender also
requested additional documentation to complete underwriting and loan
approval.

The buyer sent the documentation the next day, on April 29th. The
closing disclosure was issued after April 28th. The buyer’s loan officer
testified that the buyer was not “clear to close” on April 28th and did not
obtain the final loan approval until April 29th.

On April 28th, the parties communicated back and forth regarding a
potential extension of the closing day. An addendum was drafted to extend
the closing to May 10th, but the addendum was never executed. The
parties dispute whether there was an enforceable oral agreement to extend
the closing. Regardless, the closing did not occur on April 28th.

The buyer signed revised loan documents, wired funds, and sent
executed closing documents to the closing agent. The closing agent
circulated the settlement and closing documents and indicated they were
date-sensitive for closing on May 4th. During this time, the sellers did
nothing. On May 4, 2022, the sellers refused to close, asserting the
contract had expired.

The buyer filed suit for specific performance, alleging the closing date
had been extended beyond April 28th under the contract’s automatic
extension provision and/or a valid oral modification. The buyer argued
that the sellers breached the contract when they refused to close on May
4th. The sellers denied the extension provision applied and maintained
that the contract expired when the buyer failed to close on April 28th. The
buyer also sought incidental damages.

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o The Trial

Text message exhibits showed that on April 21, 2022, the sellers’ listing
agent informed the buyer’s side that the sellers would “not extend the
closing date.” Despite this, the buyer texted the listing agent a few days
later on April 27th at 9:00 p.m., stating, “the parties agree to change the
Closing Date from April 28, 2022 to May 10, 2022,” and the following
morning requested a signed document from the sellers confirming that
change.

The listing agent testified that he spoke with the sellers and their
attorney, and they indicated, “[t]he buyer agreed with that, [the seller]
didn’t say no. He said see what happens.” Later that morning, the listing
agent texted the buyer proposed extension language that included
additional terms, including that the buyer would purchase the property in
its “as-is” condition with no further repairs or credits. The buyer
responded by repeating her previous text that the parties agreed to extend
the closing date to May 10th. The listing agent texted the buyer back, “I
get him extend [sic] to May 10. I will forward you the extension.”

At 11:55 a.m. the same morning, the listing agent emailed the buyer an
addendum reflecting a May 10th closing date and a general “as-is”
condition. The listing agent testified that the buyer signed the addendum,
which the buyer confirmed.

The listing agent testified that after the buyer signed the addendum, he
sent it to the sellers. The sellers wanted their listing agent to talk to the
sellers’ attorney to add additional “current as-is” condition language to
the addendum. The buyer did not agree to this additional language.

At 12:58 p.m., the listing agent texted the sellers that “the buyer didn’t
want the sign [sic] the extension for purchase current as is conditions.”
Emails also showed that at 1:00 p.m., the listing agent told the sellers and
the sellers’ attorney that “the buyer not agree [sic] with the ‘current as is
condition’ term.” At 2:00 p.m., the sellers’ attorney emailed the listing
agent back, “please prepare a cancellation of contract as the Seller won’t
extend.”

At 5:00 p.m. that day, the buyer emailed the sellers’ attorney, “[t]his
will confirm that the contract gives an automatic extension of seven (7)
days for the closing.” The exhibits do not reflect any response from the
sellers, the sellers’ attorney, or the listing agent. At 7:00 p.m. that night,
the sellers texted the listing agent, “please follow [the sellers’ attorney]’s
advice. Thanks.”

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Because of this back-and-forth, the listing agent testified that the buyer
did not agree to that term, and, as a result, no agreement was reached.
He testified that his impression was that “both parties were still working
on the deal.” The buyer, by contrast, testified that she believed the parties
had agreed to extend the closing date. This was based on communications
with the listing agent and the buyer, including her understanding that the
closing would be extended to May 10th.

On May 2nd, the closing agent emailed logistical instructions, to which
the sellers’ attorney responded with a smiley face. On May 3rd, the buyer
emailed the listing agent that she was “ready to close.” The following day,
the listing agent texted the buyer that “the seller cancel [sic] the contract.”

• The Judgment

The trial court found the sellers were in “breach of the contract by
failing and refusing to close on May 4, 2022,” and entered a judgment
against the sellers “and in favor of [the buyer]’s breach of contract claim
for specific performance.” The trial court then awarded damages to be
offset against the purchase price, including $381,509.35 for increased
interest expense, $39,173.12 for rents and profits, and $239,268.00 for
unpermitted improvements. With a contract that began at $825,000, after
offsetting $659,950.47 in damages, the sellers were left to convey the
property to the buyer for $165,049.53.

The sellers moved for a judgment in accordance with their motion for
directed verdict and for a new trial. The sellers argued that the buyer
breached by failing to obtain loan approval and close by April 28, 2022,
no valid extension of the closing date occurred, and the contract
terminated under its terms. They further argued that the buyer failed to
establish entitlement to specific performance or damages, the trial court
misinterpreted the unambiguous contract, and the damages award was
unsupported by competent, substantial evidence and based on
inadmissible expert testimony, warranting judgment in their favor or,
alternatively, a new trial.

The buyer responded that the trial court properly entered judgment
against the sellers, the sellers’ motion improperly reasserted previously
denied arguments, and that competent, substantial evidence supported
the trial court’s finding that the buyer was ready, willing, and able to
perform and that the closing date was extended. The buyer further argued
the damages award was supported by unrebutted evidence, including
expert testimony, and that no basis existed for rehearing or a new trial.

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The trial court set aside $80,000 attributed to the unpermitted-
improvements damages and the interest award on the retained deposit but
otherwise left the judgment intact.

From the judgment and the order on the sellers’ post-trial motions, both
parties appeal.

• The Analysis

The sellers first argue the closing date was never extended and the trial
court erred in finding a breach based on a post–April 28, 2022, closing
date. We agree with the sellers on this issue. The sellers further argue
there was no automatic extension of the closing date pursuant to
Paragraph 5 of the agreement.

The buyer responds that the parties orally agreed to extend the closing
date. Alternatively, the buyer argued that Paragraph 5 provided an
automatic extension of the closing date.

Whether a written contract was modified by subsequent agreement or
course of dealing is a question of fact reviewed for competent, substantial
evidence. Henley v. MacDonald, 971 So. 2d 998, 999 (Fla. 4th DCA 2008);
Greenberg v. Bekins of S. Fla., 337 So. 3d 372, 375 (Fla. 4th DCA 2022).

o The Three-Part Okeechobee Analysis

Even where a contract requires written modifications, an oral
modification may be enforceable if the proponent establishes: (1) mutual
assent to the modification; (2) subsequent conduct consistent with the
modification; and (3) the proponent provided additional consideration
beyond the original contract. Okeechobee Resorts, L.L.C. v. E Z Cash Pawn,
Inc., 145 So. 3d 989, 995 (Fla. 4th DCA 2014) (citing Prof’l Ins. Corp. v.
Cahill, 90 So. 2d 916, 918 (Fla. 1956)). The record fails to reveal that the
buyer established an enforceable oral modification of the contract.

1. Mutual Assent

Mutual assent requires clear and unequivocal evidence of agreement;
silence or failure to object does not establish assent. P.D.K., Inc. v.
Madeline, 291 So. 3d 134, 136 (Fla. 4th DCA 2020). Courts distinguish
between a binding modification and ongoing negotiations;
communications reflecting proposals or incomplete terms do not establish
assent. Perera v. Diolife LLC, 274 So. 3d 1119, 1123 (Fla. 4th DCA 2019)
(holding emails and draft amendment that reflected a “non-binding offer”

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that “only becomes effective upon execution” did not establish modification
where parties did not act on it).

Conduct must reflect performance under the alleged modification—not
merely actions consistent with the original contract. Okeechobee Resorts,
L.L.C., 145 So. 3d at 995. This includes the proponent providing
independent consideration for the modification. See Ward Photonics LLC
v. Setzer, No. 6:18-cv-961-Orl-37GJK, 2018 WL 11466156, at *7 (M.D. Fla.
Dec. 11, 2018) (applying Okeechobee and Cahill to find no valid
modification where parties orally agreed to extend the thirty-day return
window, acted upon this agreement, but the proponent failed to provide
additional consideration).

Here the contemporaneous communications do not establish a clear
and unequivocal meeting of the minds. The listing agent told the buyer on
April 21st that the sellers would not extend the closing date. The buyer’s
subsequent texts unilaterally declaring that “the parties agree to change
the Closing Date” were not evidence of a concluded agreement; they were
the buyer’s own assertion that an agreement existed.

On April 28th, the listing agent transmitted an addendum extending
the closing date to May 10th with a general “as-is” condition, which the
buyer signed, and the listing agent then forwarded to the sellers for
signature. The sellers, however, required additional language specifying
that the property be purchased in its “current as-is” condition. This was
a more specific term going beyond the general as-is provision that the
buyer had already accepted. The buyer refused to agree to this additional
term. As a result, the sellers’ attorney instructed the listing agent to
prepare a cancellation. The sellers’ subsequent silence in response to the
buyer’s 5:00 p.m. email asserting a contractual extension right cannot
substitute for an express agreement.

The trial testimony confirms the absence of mutual assent. The listing
agent testified the sellers “didn’t say no” and responded “see what
happens”—equivocal language that falls well short of the unequivocal
assent Okeechobee requires. The listing agent confirmed on cross-
examination that there was no extension to May 10th.

The sellers’ real estate attorney further testified he “did not agree” to
any extension, that post-April 28th discussions were attempts to “revive”
an already-expired contract. When the buyer asserted an extension right,
he “just listened” because he lacked authority to respond. Taken together,
the record establishes that the parties discussed extending the closing

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date but did not reach an agreement. Thus, the buyer failed to establish
the first Okeechobee element.

2. Subsequent Conduct Consistent With The Modification

The buyer’s post-April 28th conduct—signing revised loan documents,
wiring funds, and sending closing documents—is consistent with her
subjective belief that the deadline had been extended. But the sellers’
conduct does not.

The listing agent testified that the addendum remained unexecuted and
“waiting for both parties” to sign. The sellers’ attorney described post-April
28th communications as efforts to revive an expired contract, not
performance under a modified one. The sellers’ attorney’s cancellation
instruction and the sellers’ direction to follow that advice confirm the
sellers were not performing under any new agreement. Thus, the second
Okeechobee element is not met.

3. Additional Consideration

The only plausible consideration for an extension was the “current as-
is” language that the sellers wanted to add to the extension addendum.
The record shows this term was never agreed upon. The listing agent sent
the buyer an addendum containing an “as-is” condition term, and the
buyer signed it. The sellers, however, demanded the agreement read
“current as-is” before they would agree to the extension. The buyer refused
to accept the additional term. In short, the parties never reached an
agreement on consideration for the extension. Thus, the third Okeechobee
element is not met.

In sum, the record does not establish a clear and unequivocal meeting
of the minds. The parties’ conduct reflected continued bargaining rather
than performance under a new agreement, and the buyer did not provide
additional consideration. Thus, the trial court’s finding of an enforceable
extension is not supported by competent, substantial evidence under
Okeechobee’s three-part analysis.

o The Buyer’s Automatic Extension Argument

The buyer also argued that Paragraph 5(a) of the original agreement
provided for an automatic extension of the closing date. The sellers
responded that Paragraph 5(a) did not operate to extend the closing date
because the buyer failed to obtain loan approval and complete
underwriting by April 8, 2022. The buyer replied that she had effectively

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secured financing and any remaining lender conditions fell within the
scope of the automatic extension.

Whether a contractual extension provision applies presents a mixed
question of law and fact. The interpretation of the contract is reviewed de
novo. Greenberg, 337 So. 3d at 375. Whether those conditions were
satisfied is a factual determination reviewed for competent, substantial
evidence. Id.

A lender is generally required to ensure that the borrower receives the
Closing Disclosure no later than three business days before
consummation of the loan. 12 C.F.R. § 1026.19(f)(1)(ii). Paragraph 5(a)
provided for an automatic extension of the closing date, not to exceed
seven days, where Paragraph 8(b) is checked, the buyer has obtained loan
approval, underwriting is complete, and closing funds are not available on
the closing date solely because of the CFPB three-business-day Closing
Disclosure delivery requirement. See 12 C.F.R. § 1026.19(f)(1)(ii).

Paragraph 8(b), if checked, makes the contract contingent on the Buyer
obtaining approval for a conventional mortgage loan to finance her
purchase of the property. Neither party disputes that Paragraph 8(b) was
checked. The parties dispute whether (1) loan approval had been obtained
and (2) underwriting had been completed by April 28th. We agree with the
sellers that neither condition was met.

The record shows the bank had not approved a finalized, fundable loan
by April 28th. The buyer received two letters from the bank that day. The
first was a “Counteroffer/Notice of Action Taken,” stating the bank was
unable to offer credit on the originally requested terms and could only
conditionally offer credit on different terms. This occurred because the
buyer had requested a new appraisal that came in lower, requiring the
loan to be restructured to a reduced amount.

The buyer’s loan officer testified that the bank’s original approval
expired, and a new commitment letter was required. Only after the buyer
accepted the counteroffer did the bank issue a revised commitment on the
new loan. But that letter still required additional documentation before
the file could be completed.

The buyer did not submit that documentation until April 29th. At best,
the buyer had a revised commitment for a newly structured loan
conditioned on outstanding borrower documentation. That does not
constitute final loan approval.

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The loan officer testified that underwriting on the revised loan was
completed only after the bank received the missing documentation after
April 28th. The closing agent’s testimony is consistent with this
understanding: the lender’s and title company’s Closing Disclosure
figures did not match until May 2, 2022, and matching figures were
necessary to complete underwriting.

Put simply, on the closing date, the bank had changed the loan terms,
the buyer had only just accepted the revised loan terms, additional
documentation was outstanding, and underwriting remained incomplete.
Because the loan file was not otherwise complete, the absence of closing
funds on April 28th cannot be attributed solely to the CFPB timing
requirement. Accordingly, Paragraph 5(a) was not triggered, and the
automatic extension did not apply.

Because the buyer failed to establish modification under Okeechobee
or satisfaction of Paragraph 5’s express conditions, the trial court erred in
finding the closing date was extended beyond April 28th. Accordingly,
April 28th remained the operative closing date, and the buyer, not the
sellers, breached the contract by failing to close on that date.

Specific performance is unsupportable because a buyer who was in
default on the operative closing date is not entitled to specific performance.
See Nacoochee Corp. v. Pickett, 948 So. 2d 26, 29-30 (Fla. 1st DCA 2006).

Our decision on this issue moots the remaining issues raised in the
appeal and the cross-appeal. We therefore reverse and remand the case
to the trial court to vacate the judgment in favor of the buyer and for entry
of judgment for the sellers.

Reversed and remanded.

GROSS and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely-filed motion for rehearing.

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