United States District Court, S.D. Florida
M&M REALTY PARTNERS AT HAGEN RANCH, LLC, a New Jersey limited Liability company, Plaintiff,
WILLIAM MAZZONI & THOMAS A. SMITH, as Co-Trustees of the William Mazzoni Trust dated 06/04/1992, & WILLIAM MAZZONI, individually, Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
L. ROSENBERG UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants' Motion for
Summary Judgment [DE 57] and Plaintiff's Motion for
Summary Judgment [DE 60]. Both motions have been fully
briefed, and the Court heard oral argument from the parties
on July 19, 2018. For the reasons set forth below,
Defendants' Motion is granted in part and denied in part
and Plaintiff's Motion is denied.
dispute arises from a contract for the purchase and sale of
real property. Plaintiff M&M Realty Partners at Hagen
Ranch, LLC and the Defendant William Mazzoni Trust entered
into the contract on August 17, 2011, whereby the Defendant
trust would sell an approximate eight-acre parcel to
Plaintiff. The contract provided for a six-year period for
Plaintiff to satisfy all conditions precedent to close,
including certain governmental development approvals;
otherwise, if the conditions precedent were not satisfied,
the contract terminated automatically. The parties dispute
whether Plaintiff satisfied the conditions precedent in the
contract and, as a result of that dispute, Defendants refused
to close the real estate transaction. After Defendants
refused to close, Plaintiff initiated this lawsuit.
has brought three counts: a breach of contract claim that
seeks specific performance (Count I), a breach of contract
claim that seeks monetary damages (Count II), and a tortious
business interference claim against an individual trustee of
the Defendant trust, Mr. William Mazzoni (Count III).
SUMMARY JUDGMENT STANDARD
judgment is appropriate if “the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The existence of a factual dispute is not
by itself sufficient grounds to defeat a motion for summary
judgment; rather, “the requirement is that there be no
genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986). A dispute is genuine if “a reasonable
trier of fact could return judgment for the non-moving
party.” Miccosukee Tribe of Indians of Fla. v.
United States, 516 F.3d 1235, 1243 (11th Cir. 2008)
(citing Anderson, 477 U.S. at 247-48). A fact is
material if “it would affect the outcome of the suit
under the governing law.” Id. (citing
Anderson, 477 U.S. at 247-48).
deciding a summary judgment motion, the Court views the facts
in the light most favorable to the non-moving party and draws
all reasonable inferences in that party's favor. See
Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006).
The Court does not weigh conflicting evidence. See Skop
v. City of Atlanta, 485 F.3d 1130, 1140 (11th Cir.
2007). Thus, upon discovering a genuine dispute of material
fact, the Court must deny summary judgment. See id.
moving party bears the initial burden of showing the absence
of a genuine dispute of material fact. See Shiver v.
Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). Once the
moving party satisfies this burden, “the nonmoving
party ‘must do more than simply show that there is some
metaphysical doubt as to the material facts.'”
Ray v. Equifax Info. Servs., LLC, 327 Fed.Appx. 819,
825 (11th Cir. 2009) (quoting Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)). Instead, “[t]he non-moving party must make a
sufficient showing on each essential element of the case for
which he has the burden of proof.” Id. (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
Accordingly, the non-moving party must produce evidence,
going beyond the pleadings, to show that a reasonable jury
could find in favor of that party. See Shiver, 549
F.3d at 1343.
parties have filed cross motions for summary judgment on the
(A) Was Plaintiff ready, willing, and able to close the real
(B) Did the parties' contract terminate before Plaintiff
met all of the necessary conditions precedent to close?
(C) Can the individual Defendant in this case, Mr. William
Mazzoni, be held liable for tortious business interference?
(D) Is specific performance available in this case?
issue is addressed in turn.
WAS PLAINTIFF READY, WILLING, AND ABLE TO
plaintiff to establish a prima facie claim that
seeks specific performance, the plaintiff must show that he
or she was ready, willing, and able to perform under the
contract. Hollywood Mall, Inc. v. Capozzi, 545 So.2d
918, 920 (Fla. Dist. Ct. App. 1989). Likewise, for a
plaintiff to establish a prima facie claim that
seeks damages, the plaintiff must show that he or she was
ready, willing, and able to perform under the contract.
See, e.g., Lusigman v. Lusigman, 972 So.2d
1076, 1078-79 (Fla. Dist. Ct. App. 2008) (plaintiff's
alternative claim for damages failed based on lack of
evidence of ability to close). Defendants argue that summary
judgment must be entered in their favor as to Count I and
Count II because Plaintiff has no evidence that it was ready,
willing, and able to close the transaction in this case.
are three ways for a purchaser to establish that the
purchaser is ready, willing, and able to close: (1) cash on
hand; (2) possession of assets and a credit rating, which
with reasonable certainty, enable the party to command the
requisite funds; or (3) a binding commitment by a financially
able third-party to loan or invest the necessary funds.
Capozzi, 545 So.2d at 920-21. Defendants argue that
Plaintiff has evidence of none of foregoing to show it was
ready, willing, and able to close. In response, Plaintiff
cites to two pieces of evidence. First, Plaintiff cites to a
letter prepared by Valley National Bank which was drafted on
October 2, 2017. That letter is very brief and reads as
Please be advised that Jack Morris and Joseph Marino have
credit facilities currently in good standing with Valley
National Bank, with combined open availability in excess of
$5, 000, 000. Please feel free to contact me if I can be of
any further assistance.
DE 58-6 at 3. Second, Plaintiff cites to an affidavit by an
owner of Plaintiff, Mr. Joseph A. Marino. In that affidavit,
Mr. Marino attests that he possessed the funds to
close. DE 69 at 9.But as Defendants emphasize, the Plaintiff
in this case is not Mr. Marino. Mr. Marino was not the
purchaser of the real property in this case-Plaintiff was.
Mr. Marino is an owner of Plaintiff. Even when an individual
with an interest in a transaction testifies that he or she
was willing to provide a purchaser with the required money to
close, the purchaser is still not entitled to specific
performance if there is no evidence of a binding
commitment for the funds to be provided. Capozzi,
545 So.2d at 920; see also Taylor v. Richards, 971
So.2d 127 (Fla. Dist. Ct. App. 2007) (reversing a bench trial
on the grounds that there was no binding commitment for an
individual to provide the necessary funds to close);
Sticht v. Shull, 543 So.2d 395, 397 (Fla. Dist. Ct.
App. 1989) (finding that a purchaser failed to demonstrate
the ability to command the funds necessary to make a purchase
where his alleged business partner, who was to provide the
necessary financing for the purchase, was not legally
obligated to perform under the contract).
letter quoted above does not contain a binding commitment for
funds to be provided to the Plaintiff. The letter does not
even contain a non-binding commitment to Plaintiff.
The letter states only that Mr. Marino, together with another
owner of Plaintiff, personally possessed credit facilities in
excess of five million dollars. These facts are analogous to
those in the case of Hollywood Mall, Inc. v.
Capozzi. In Capozzi, a father created for his
children a real estate purchasing entity-an entity that
resembled the Plaintiff in the instant case.
Capozzi, 545 So.2d at 919. The contracting-purchaser
for the property in Capozzi was the entity-not the
father personally. Id. At trial, the father argued
that the entity was ready, willing, and able to close because
he personally would have committed the funds for the entity
to do so. Id. at 920. Based upon the father's
testimony, the trial court was persuaded that the
purchasing-entity was ready, willing, and able to close.
Id. The appellate court reversed, finding that even
though the father was the chairman of the board for the
purchasing-entity, the “[corporate-chairman father] was
under no obligation to provide funds to the
corporation to close the transaction, and [the
purchasing-entity] cannot be considered to be ready, willing
and able to perform when its only ability to close is derived
from funds not within its control and subject to the
gratuitous payment by another.” Id. (emphasis
added). Notably, the content of Mr. Marino's affidavit
greatly resembles the arguments that were rejected by the
appellate court in Capozzi.
does not distinguish Capozzi and instead relies upon
the fact that Mr. Marino and his partner (Mr. Jack Morris)
personally possessed sufficient funds to close. In the
alternative, Plaintiff argues that Mr. Marino's net worth
at least creates an issue of material fact as to the question
of whether Plaintiff was ready, willing, and able to close.
But Plaintiff has no evidence that it possessed the
cash to close (which it conceded at oral argument), no
evidence that Plaintiff commanded sufficient assets
to obtain the necessary funds (which it conceded at oral
argument), and no evidence of possessing a binding
commitment to secure a loan for the funds to close.
Plaintiff's designated corporate representative, Mr.
Morris, was given the express opportunity at a deposition to
explain how the Plaintiff-entity in this case would have been
ready, willing, and able to close, but Mr. Morris refused to
answer questions in this area:
Q. Which bank wrote this letter, Mr. Morris?
A. Valley National Bank.
Q. And which -- for this account at Valley National Bank was
the [sic] M&M the ...