THE ALLEGRO AT BOYNTON BEACH, L.L.C., a Florida Limited liability company, Appellant,
C. BRUCE PEARSON, an individual, and OLSON LAND PARTNERS, LLC, Appellees.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Meenu Sasser, Judge; L.T. Case No.
McK. Hampton and Theresa M. Kenney of Duss, Kenney, Safer,
Hampton & Joos, P.A., Jacksonville, for appellant.
S. Telepman of Cohen, Norris, Wolmer, Ray, Telepman &
Cohen, North Palm Beach, for appellee, Olson Land Partners,
dispute is between a plaintiff, who holds a right of first
refusal to purchase real property, and a defendant property
owner who failed to honor that right. The primary issue on
appeal is whether the plaintiff made an election of remedies
that prevented it from seeking specific performance. Because
we hold that the plaintiff did not make such an election of
remedies, we reverse.
Allegro at Boynton Beach, LLC held a right of first refusal
to a parcel of land owned by C. Bruce Pearson (the Seller).
The Seller entered into an agreement to sell the property to
Olson Land Partners, LLC (the Buyer), and refused to honor
Allegro's right of first refusal. Allegro sued the Seller
for breach of contract seeking damages, a declaratory
judgment, injunctive relief, and specific performance. The
trial court allowed the Buyer to intervene.
Allegro moved for "Partial Summary Judgment as to Counts
I and II of the Complaint for Breach of Contract and
Declaratory Judgment." The last line of Allegro's
memorandum of law in support of its motion reads:
"Upon election of its remedy, Allegro will be able
to either seek damages, specific performance or
trial court granted Allegro's motion, finding: (1)
Allegro's right of first refusal remained in effect; and
(2) the Seller failed to comply with Allegro's right of
days later, in an attempt to evade Allegro's pursuit of
its right of first refusal, the Buyer terminated the first
agreement to purchase the parcel, and then signed a new
agreement with the Seller to purchase the same parcel ―
this time at a considerably higher purchase price with a
shortened inspection period. The Seller delivered the new
agreement to Allegro giving it ten days to exercise its right
of first refusal.
Allegro filed a "Motion for Entry of Final Judgment of
Specific Performance Upon Election of Remedy."
Allegro's motion was summarily denied.
Buyer filed a counterclaim for declaratory judgment followed
by a motion for summary judgment on the counterclaim. The
trial court granted the Buyer's motion, finding that
Allegro made an election of remedies to recover damages for
breach of contract, and that the original purchase agreement
was no longer valid and enforceable. The court held that
"other than recovering damages for the breach of the