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Allegro at Boynton Beach, L.L.C. v. Pearson

Florida Court of Appeals, Fourth District

October 25, 2017

THE ALLEGRO AT BOYNTON BEACH, L.L.C., a Florida Limited liability company, Appellant,
v.
C. BRUCE PEARSON, an individual, and OLSON LAND PARTNERS, LLC, Appellees.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Meenu Sasser, Judge; L.T. Case No. 2015-CA-007970.

          Wade McK. Hampton and Theresa M. Kenney of Duss, Kenney, Safer, Hampton & Joos, P.A., Jacksonville, for appellant.

          James S. Telepman of Cohen, Norris, Wolmer, Ray, Telepman & Cohen, North Palm Beach, for appellee, Olson Land Partners, LLC.

          Gross, J.

         This 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.

         Facts

         The 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 injunction."

         The 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 first refusal.

         Two 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.

         Instead, Allegro filed a "Motion for Entry of Final Judgment of Specific Performance Upon Election of Remedy." Allegro's motion was summarily denied.[1]

         The 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 ...


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