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Perera v. Diolife LLC

Florida Court of Appeals, Fourth District

June 12, 2019

DIOLIFE LLC, a Florida limited liability company, Appellee.

          Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; David A. Haimes, Judge; L.T. Case No. 062016CA006867AXXXCE.

          J. David Huskey, Jr. of McGee & Huskey, P.A., Fort Lauderdale, for appellant.

          Lida Rodriguez-Taseff and Elan A. Gershoni of DLA Piper LLP (US), Miami, for appellee.


          Kuntz, J.

         Diolife LLC's motion for rehearing en banc or, alternatively, for certification of an issue of great public importance is denied.[1] We sua sponte withdraw our prior opinion and issue this opinion in its place.

         Douglas 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.


         i. Pre-Lawsuit

         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.

         The 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 . . . .

         The 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 this

         Agreement shall be construed as a waiver of such provisions or affect the validity, binding effect or enforceability of this Agreement or any provision hereof.

         The 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 new dates.

         Two 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.

         Six 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."

         On 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.

         One day 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."

         ii. The Lawsuit

         Nine 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 ...

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