final until disposition of timely filed motion for rehearing.
Appeal from a non-final order from the Circuit Court for
Miami-Dade County Lower Tribunal No. 18-2139, William Thomas,
& Valori, LLP, and Melissa D. Visconti and Melanie
Damian, for appellant.
Kluger, Kaplan, Silverman, Katzen & Levine, PL, and Marko
F. Cerenko and Alan J. Kluger; Samson Appellate Law, and
Daniel M. Samson, for appellee.
SALTER, LOGUE and SCALES, JJ.
Collins, LLC ("Seller") appeals an order granting
partial summary judgment regarding the specific performance
of a buyout provision in a property development joint venture
with the appellee, PSB Collins, LLC ("Buyer"). We
scenario in the circuit court lawsuit involved a common
contractual mechanism for the resolution of an impasse when
two equal owners in a joint venture become deadlocked. In
this case, major real estate investors Dhruv Piplani and
Jason Halpern each created individual New York limited
liability companies (Buyer, by Piplani, and Seller, by
Halpern), which in turn formed and held 50% interests in
"JHPSB Collins Ventures LLC," a Delaware limited
liability company (the "Venture").
Venture owned, directly and indirectly, three other LLCs, one
of which held title to a property the Venture and those
related entities planned to develop as a condominium on
Collins Avenue in Miami Beach, Florida (the
"Project"). To facilitate the Project, the Venture
obtained $26, 000, 000.00 in construction financing from
Stonegate Bank ("Stonegate"). Jason Halpern
personally guaranteed the loan and entered into an
environmental indemnity agreement with Stonegate in
connection with the loan.
operations of the Venture were governed by an amended and
restated limited liability company operating agreement (the
"Agreement") and by Delaware law. The issue
presented here is whether the trial court correctly
interpreted the buyout provision in the Agreement following
the parties' decision to separate.
essence of a buyout provision such as this is that one
co-owner proposes to buy the other's interest at a
particular price, and the recipient of that proposal either
accepts the price (and sells) or responds by agreeing to buy
rather than sell at the designated price. In the present
case, 295 Collins, LLC first proposed to purchase the
interests of PSB Collins, LLC, for a price based on an
all-cash Project purchase price of $43, 092, 331.00. In a
timely response (30 days after the proposal), PSB Collins,
LLC, elected instead to purchase the ownership interest of
295 Collins, LLC, based on the Project purchase price, rather
than to sell. This explains the designations of
"Seller" for 295 Collins, LLC, and
"Buyer" for PSB Collins, LLC, for purposes of this
8.7 of the Agreement, captioned "Buy/Sell,"
governed the transaction and closing in this case. The Buyer
made the specified escrow deposit of five percent of the
purchase price and the parties communicated via email
regarding a closing date set for Friday, January 19, 2018.
signify a problem, though, when a court reporter shows up to
transcribe the "closing proceedings" at the time
and place of the scheduled closing--and that is what happened
here. At the beginning of the closing proceedings, both
parties and their counsel indicated that they were present
and "ready, willing and able" to close the
transaction. The Seller balked at executing the requisite
transfer documents after the Buyer (and its attorneys)
explained that: the Buyer had already wired to Chicago Title
(the title insurer and closing agent for the transaction)
$24, 500, 000.00, the proceeds of a new mortgage loan that
was arranged with Emerald Creek Capital 2, LLC ("Emerald
Creek"), to fund the Buyer's purchase and the payoff
of the Stonegate loan (including a satisfaction of
Stonegate's existing mortgage and release of Mr.
Halpern's personal guaranty of that loan), and had
assembled the documents required to be executed in connection
with the closing.
Seller's refusal was based on an emailed "closing
checklist" that contained five items: (1) a release of
Mr. Halpern regarding his Stonegate guaranty and a
condominium unit owner admission agreement; (2) an indemnity
agreement; (3) additional payments of $1, 271, 466.00
regarding an alleged member loan due the Seller, together
with accrued and unpaid legal fees, accounting fees, and
overhead costs incurred through the closing date; (4) a
document to address a non-party alleged to have purchased an
interest in the Venture; and (5) a condominium offering plan
amendment. The Buyer responded to each of those requirements
with its position, and relied on section 8.7(i) of the
Agreement, a provision that required the "consummation
of the Buy/Sell Closing," even if a dispute had arisen
over the purchase price, prorations, adjustments, "or
any other calculation or computation." The provision
specified that the parties were to consummate the transaction
"as if [the dispute] did not exist," with the
dispute to continue after the closing with the intention that
the parties would ...