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940 Lincoln Road Associates LLC v. 940 Lincoln Road Enterprises, Inc.

Florida Court of Appeals, Third District

December 27, 2017

940 Lincoln Road Associates LLC, et al., Appellants,
v.
940 Lincoln Road Enterprises, Inc., et al., Appellees.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal from the Circuit Court for Miami-Dade County Nos. 13-4200 & 13-4203, Migna Sanchez-Llorens, Judge.

          Legon Fodiman, P.A., and Todd R. Legon and William F. Rhodes, for appellants.

          Foley & Lardner LLP, and William E. Davis, Mary Leslie Smith and Natalia M. Salas; Schlesinger & Associates, P.A., and Michael J. Schlesinger and Joshua B. Bochner; Greenberg Traurig, P.A., and Julissa Rodriguez and Stephanie L. Varela, for appellees.

          Before SUAREZ, SCALES and LINDSEY, JJ.

          SCALES, J.

         940 Lincoln Road Associates LLC and CA 947 Lincoln Road LLC (collectively "Buyers") appeal the grant of final summary judgment in favor of 940 Lincoln Road Enterprises, Inc., 947 Lincoln Road Investments, Inc., and Leon Zwick (collectively "Sellers") on Buyers' claims related to two failed commercial real estate deals. Buyers also appeal separate orders dissolving their lis pendens against the commercial properties that are the subject of the underlying action. For the following reasons, we affirm in all respects.

         I. RELEVANT FACTS AND FACTUAL BACKGROUND

         The relevant facts are not in dispute.

         In May 2012, Buyers entered into agreements with Sellers to purchase two separate commercial properties located in the pedestrian Lincoln Road mall area of Miami Beach. When it became apparent that neither closing would take place as scheduled (on December 28, 2012 and January 7, 2013), Buyers exercised their contractual rights to terminate the subject purchase and sale agreements and received a return of their deposits. Both termination letters provided that Buyers were terminating the agreements because: (i) Sellers had not complied with certain conditions set forth in the agreements with respect to the removal of existing tenants prior to closing; and (ii) Sellers could not deliver clear title at closing because notices of lis pendens had been recorded against the subject properties by Zwick's sister, Bejla Miller, who had filed the two lis pendens in an action in the Miami-Dade Circuit Court, wherein she claimed an ownership interest in the subject properties.

         Buyers claim that when they decided to terminate the subject purchase and sale agreements, Sellers' representatives had orally promised that Sellers would sell the subject properties to Buyers under the same terms and conditions, including price, but with a new closing date, "once the dust settled" from Bejla Miller's litigation (the "oral reset agreement"). The alleged oral reset agreement was neither referenced in the letters of termination, however, nor ever reduced to writing. In November 2013, in the case brought by Bejla Miller, the trial court entered final summary judgment in favor of Sellers. Sellers did not thereafter sell the subject properties to Buyers pursuant to the oral reset agreement. Instead, Sellers sold the properties to a third party, Richard Chera. There was evidence introduced below that Sellers had negotiated the sale of the subject properties to Chera prior to Buyers' termination of the May 2012 purchase and sale agreements, which, if true, would have been a violation of the exclusivity provision of the May 2012 purchase and sale agreements.[1]

         Several months after Buyers terminated the purchase and sale agreements, Buyers filed two nearly identical actions against Sellers, which were later consolidated, and filed notices of lis pendens against the subject properties. The Third Amended Complaints allege claims for specific performance (count I), declaratory relief (count II), injunctive relief (count III), fraud (count IV), fraud in the inducement (count V), negligent misrepresentation (count VI), rescission (count VII), and breach of contract (count VIII). All of the claims are based on the common allegations that: (i) Sellers had represented they could deliver clear and marketable title for the subject properties when Sellers knew they could not do so because of Bejla Miller's claim to an ownership interest in the properties; (ii) Sellers had negotiated the sale of the subject properties with Richard Chera while Sellers were still under contract with Buyers in violation of the May 2012 purchase and sale agreements' exclusivity provisions; and (iii) under the oral reset agreement, Sellers had agreed to sell the subject properties to Buyers after the lawsuit with Miller was resolved. Essentially, Buyers' complaints allege Buyers were fraudulently induced to terminate the contracts; Buyers seek to revoke Buyers' terminations and reinstate the contracts.

         After holding a hearing on Sellers' motions for summary judgment, the trial court entered separate orders granting summary judgment in favor of Sellers on all claims. The trial court separately entered orders dissolving the lis pendens against each of the subject properties, and on November 20, 2016, entered a final judgment for Sellers which Buyers timely appealed.

         II. ...


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