final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County No.
15-9465, Barbara Areces, Judge.
Militzok & Levy, P.A. (Hollywood); Richard J. Lee
(Hollywood), for appellants.
Jonathan A. Heller; Jay M. Levy, for appellee.
SUAREZ, SCALES and LUCK, JJ.
case is about the enforceability of a subscription agreement
between an investor and the company she invested in. The
investor sought a declaratory judgment that the subscription
agreement she signed was unenforceable because there was a
lack of mutuality, and the liquidated damages clause calling
for her to surrender her initial payments was an improper
penalty provision. The trial court granted the investment
company's motion for summary judgment, declaring the
agreement was enforceable. We agree, and affirm.
Background and Procedural History
2013, BH 150 Second Avenue, LLC, made an offering seeking
accreditedinvestors to join in a business venture.
The objective of the venture was to purchase a commercial
building in downtown Miami and convert it into an office and
retail condominium of approximately 100 units. The offering
was intended as an alternative to obtaining institutional or
bank financing for the project. The offering included a
proposed operating agreement for the new business and a
subscription agreement to be signed by each investor. Prior
to making the offering, BH 150 contracted with the owners of
the building it sought to purchase. The purchase price was
$17.5 million and BH 150 paid a $1.1 million non-refundable
deposit on the contract. The subscription agreement to be
signed by the investors recited the existence of the contract
and anticipated the transaction would close on or about
November 1, 2013, although it allowed for an extension of one
hundred twenty days if the renovations being performed were
not completed in a timely fashion.
August 9, 2013, Keren Ben Shimon executed a subscription
agreement where she agreed to pay $565, 000 at execution, $1,
130, 000 thirty days after execution, and the remaining $3,
955, 000 thirty days prior to the noticed closing date on the
purchase of the building. Upon completion of the project, Ben
Shimon would be deeded title to four of the building's
condominium units. Ben Shimon made three payments under the
agreement totaling $3, 295, 000.
December 2, 2013, BH 150 notified Ben Shimon and the other
investors that the closing on the purchase of the building
was anticipated to occur on January 15, 2014. Ben Shimon was
told that in accordance with the terms of her agreement the
final payment of $2, 469, 154.04 needed to be made on or
before December 16, 2013. Ben Shimon was unable to make the
payment and asked for additional time. Ben Shimon was advised
that another investor was willing to advance Ben Shimon the
amount required to avoid default, but Ben Shimon did not
accept this loan. BH 150 sent a default letter to Ben Shimon
on December 19, 2013. Eventually, the developer of the office
building chipped in the money needed to make up for the
shortfall created by Ben Shimon's default, and BH 150
closed on the purchase of the building on February 28, 2014.
wake of the default, Ben Shimon brought this declaratory
relief action seeking to: (1) declare the subscription
agreement void for lack of mutuality; (2) declare the
liquidation damages clause unenforceable as a penalty; and
(3) obtain a return of her initial payments BH 150 retained
as a result of the default. The parties filed cross-motions
for summary judgment, and after a hearing, the trial court
denied Ben Shimon's motions and granted BH 150's
motions. Ben Shimon appeals from the final summary judgment
in favor of BH 150.
as here, based on undisputed facts, the trial court grants
one party's cross-motion for summary judgment on a
declaratory judgment action, our review is de novo. Lee
Cty. Elec. Coop., Inc. v. City of Cape Coral, 159 So.3d
126, 127 (Fla. 2d DCA 2014) ("In the declaratory
judgment proceeding, the City and LCEC filed cross-motions
for summary judgment. The circuit court determined that the
facts were undisputed, and it ruled in the City's favor
based on the franchise ...