final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County Nos.
13-4200 & 13-4203, Migna Sanchez-Llorens, Judge.
Fodiman, P.A., and Todd R. Legon and William F. Rhodes, for
& 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,
SUAREZ, SCALES and LINDSEY, JJ.
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.
RELEVANT FACTS AND FACTUAL BACKGROUND
relevant facts are not in dispute.
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
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
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
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.