from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; David A. Haimes, Judge; L.T. Case No.
David Huskey, Jr. of McGee & Huskey, P.A., Fort
Lauderdale, for appellant.
Rodriguez-Taseff and Elan A. Gershoni of DLA Piper LLP (US),
Miami, for appellee.
APPELLEE'S MOTION FOR REHEARING EN BANC AND MOTION FOR
CERTIFICATION TO THE FLORIDA SUPREME COURT
LLC's motion for rehearing en banc or, alternatively, for
certification of an issue of great public importance is
denied. We sua sponte withdraw our prior opinion
and issue this opinion in its place.
Perera appeals the circuit court's final judgment. The
circuit court entered judgment in Diolife's favor on both
Diolife's action for declaratory relief and on
Perera's counterclaims for breach of contract and
specific performance. The court found the parties orally
modified a written contract and, as a result, Diolife did not
breach the contract. Alternatively, the court found that if
Diolife breached the contract, Perera suffered no damages.
Based on the facts and arguments presented, we reverse on
both conclusions and remand for entry of judgment for Perera.
and Diolife entered into a Membership Interest Purchase
Agreement ("MIPA"), in which Perera agreed to sell
to Diolife a 5% membership interest in Cowboys Saloon
Holdings, LLC for $200, 000. The parties completed this
transaction of the MIPA.
MIPA also gave Perera the option to sell another 5% interest
in Cowboys Saloon Holdings in exchange for another $200, 000
from Diolife. The option was exercisable in Perera's sole
discretion and required Diolife to tender the purchase price.
The MIPA required the sale of the additional interest to
close on or before March 31, 2016. This agreement to buy
another 5% of Cowboys Saloon Holdings also required Diolife
to send written notice to Perera when it was ready to close:
Agreement to Purchase and Sell the Additional
Interest. [Diolife] hereby irrevocably covenants and
agrees to purchase from [Perera], and [Perera] shall have the
option (exercisable in [his] sole discretion) to transfer,
sell and deliver to [Diolife], the Additional Interest in
exchange for a total purchase price of Two Hundred Thousand
Dollars ($200, 000.00) payable in cash at the Second Closing
. . . . [Diolife] shall send written notice to [Perera] when
it is ready to close on the purchase of the Additional
Interest (the "Closing Notice"), and such notice
shall be sent no later than March 21, 2016 . . . .
MIPA specifically provided that it could not be amended
orally or through the parties' actions:
Amendment and Waiver. The provisions of this
Agreement may be amended and waived only with the prior
written consent of the Seller and the Buyer, and no course of
conduct or failure or delay in enforcing the provisions of
shall be construed as a waiver of such provisions or affect
the validity, binding effect or enforceability of this
Agreement or any provision hereof.
parties jointly filed a detailed statement of stipulated
facts before trial. They agreed that Diolife did not send the
written notice by the March 21, 2016 deadline. Instead, on
that day, Diolife's counsel sent Perera's counsel an
email stating he understood their clients had "discussed
an extension regarding the purchase of an additional 5%
membership interest in" Cowboys Saloon Holdings. He
suggested "moving the notice and closing date" and
attached a draft amended agreement incorporating the proposed
days later, Diolife's counsel again emailed Perera's
counsel, stating, "Thanks again for our call yesterday.
Can you please provide the discussed offer in writing so my
client can have something concrete to review?"
Perera's counsel responded, "2.5% for $200, 000.
Must close by April 15. All other terms of the purchase
option remain the same. This is a non-binding offer that only
becomes effective upon execution of definitive
documents." These terms formed the purported oral
modification of the MIPA: Perera's sale of a 2.5%
interest for $200, 000, with an April 15, 2016 closing date.
days later, Perera sent a text message to Diolife's
members stating that Cowboys Saloon Holdings was
"raising cash from other big funds and ha[d] commitments
for higher valuations." The purported commitments at
higher valuations was the reason Perera was
"pushing" Diolife's members to go through with
the purchase before the closing deadline. "Once the
deadline passed," however, Perera had to convince other
investors to allow Diolife to pay $200, 000 but receive only
a 2.5% interest because the company's value was
increasing. Perera also stated in the text message: "If
you guys are not interested[, ] I am OK with it but I am
doing my best. Let me know your thoughts."
April 5, 2016, Diolife's counsel again emailed
Perera's counsel, stating he "believe[d] [their]
clients have agreed on these terms. Please confirm same . . .
." On April 11, 2016, Perera's counsel emailed
Diolife's counsel and attached a "First Amendment to
Membership Interest Purchase Agreement." Perera signed
the attachment, and it reflected the sale of a 2.5% interest
for $200, 000.
later, Diolife's counsel emailed Perera's counsel
stating, "Our client has informed us that they do not
intend to move forward with the transaction. Thanks."
Seven days after Diolife notified Perera that it would not
move forward, Perera sent a demand letter to Diolife and
stated in his cover letter that it was his "final
attempt to resolve this issue in an attempt to preserve a
working business relationship."
days after it notified Perera that it would not be completing
its purchase of the additional interest in Cowboys Saloon
Holdings, and only two days after Perera sent his demand
letter, Diolife brought an action for declaratory judgment to
determine whether Perera had a right to claim a breach of the
MIPA. Perera filed ...