Home Depot U.S.A., Inc. entered into a letter of intent with Miami Heights Land Trust, LLC1 regarding the sale of property owned by Home Depot. In the letter of intent, the parties agreed to negotiate and execute a formal purchase and sale agreement, closing on the property by a date certain. The parties failed to reach an agreement, and no closing occurred. Miami Heights filed suit against Home Depot, seeking specific performance and damages for breach of contract and fraudulent misrepresentation. The parties filed cross-motions for summary judgment, and the trial court ruled in favor of Home Depot. Miami Heights appeals, asserting four enumerations of error. Because we find that the letter of intent was unenforceable, we affirm. On appeal from a grant of a motion for summary judgment, we review the evidence de novo, viewing it in a light most favorable to the non-movant, to determine whether a genuine issue of fact remains and whether the moving party is entitled to judgment as a matter of law.2 Construing the evidence most favorably to Miami Heights, the record shows that Miami Heights drafted the initial letter of intent, which was amended and countersigned by Home Depot on or about March 23, 2005.3 The letter of intent set forth the property description and the purchase price, and provided that Miami Heights would allow Home Depot to lease a portion of the property. Relevant portions of the letter of intent provided that: 4. Execution of Formal Agreement : Within . . . 3 days of mutual execution of this Letter of Intent, Seller will cause a formal Purchase and Sale Agreement the “Agreement” to be drafted for Seller’s review and approval . . . Buyer and Seller shall have ten 10 days from delivery of the Agreement to negotiate, execute, and deliver the Agreement . The parties agree to negotiate in good faith to finalize the Agreement. If the parties fail in good faith to execute the Agreement, this Letter of Intent and all rights and obligations of the parties hereunder shall cease, terminate and be null and void and the Earnest Money shall be refunded to Buyer . . . 6. Closing : The Closing shall occur on or before April 28, 2005 . . . 10. Conditions of Closing : The Closing contemplated by the Agreement shall be subject to Purchaser’s verification that: . . . e Purchaser obtains an executed lease for the property from Seller.
This Letter of Intent shall be a binding agreement until the parties have executed the Agreement described above which has been approved by their respective counsel. The Agreement will contain all other essential terms of an agreed upon transaction . . . 11. Sale/Leaseback : Seller shall lease the property from Buyer for a period of twelve 12 months beginning from the date of Closing the “Lease”. The Lease shall be absolute net to Buyer with an annual rental rate of 6 of the Purchase Price for the first 12 months and 8 for any additional months thereafter. 13. Deed/Use Restrictions : Buyer shall consent to accept Seller’s temporary use restrictions as expressed in Seller’s contract . . . In addition, Buyer shall consent to a Deed Restriction to be recorded on the Property restricting the sale of home improvement products. 4 On March 24, 2005, Home Depot submitted a proposed formal purchase and sale agreement to Miami Heights which included a restrictive covenant that prohibited certain businesses, including skating rinks, movie theaters, non-fast food restaurants, bowling alleys, and health spas. The restrictive covenant proposed by Home Depot also prohibited any business that sold or displayed certain items including tools, paint, wallpaper, window treatments, rugs, Christmas trees, or plants, unless the items were incidental to the retailer. During negotiations, the parties disagreed about certain issues, including the meaning and scope of the term “home improvement products,” the terms of the lease, and the addition of a repurchase provision. The parties ultimately failed to agree upon and execute a final purchase and sale agreement.
