Bermont Lakes, LLC v. Rooney

• Decision Date: 30 April 2008
• Docket Number: No. 2D07-3138.,2D07-3138.
• Citation: 980 So.2d 580
• Parties: BERMONT LAKES, LLC, a Florida limited liability company, Appellant, v. J. Michael ROONEY and Steven V. Hall, Co-Trustees of the M. Lewis Hall Protective Testamentary Trust for William Lewshane Hall, Beneficiary, Appellees.
• Court: Florida District Court of Appeals

980 So.2d 580

BERMONT LAKES, LLC, a Florida limited liability company, Appellant, v. J. Michael ROONEY and Steven V. Hall, Co-Trustees of the M. Lewis Hall Protective Testamentary Trust for William Lewshane Hall, Beneficiary, Appellees.

No. 2D07-3138.

District Court of Appeal of Florida, Second District.

April 30, 2008.

Warren R. Ross and Lance Ball of Wotitzky, Wotitzky, Ross & Tuttle, P.A., Punta Gorda, for Appellant.

Harold N. Hume and J. Matthew Belcastro of Henderson, Franklin, Starnes & Holt, Fort Myers, for Appellees.

VILLANTI, Judge.

In a two-count complaint, Bermont Lakes, LLC, sought specific performance of a contract for the sale and purchase of vacant land and damages for the breach of that contract from J. Michael Rooney and Steven V. Hall, as co-trustees of the M. Lewis Hall Protective Testamentary Trust for William Lewshane Hall (the Trust). The trial court entered partial summary judgment in favor of the Trust on the specific performance count. For the reasons explained below, we treat Bermont Lakes' appeal as a petition for writ of certiorari, grant the writ, quash the partial final summary judgment, and remand for further proceedings.

Background Facts

The record shows that in January 2005 Bermont Lakes contracted to purchase 160 acres of vacant land from the Trust. Closing was originally set for March 27, 2005; however, the parties later agreed to postpone closing until April 18. On April 15, two of the principals of Bermont Lakes signed the closing documents. On April 18, when the third Bermont Lakes principal appeared at the transaction broker's office to sign the closing documents, he was told that closing could not occur that day because there were "signature problems on the deed" that the Trust needed to resolve. Bermont Lakes was told that the Trust was actively taking steps to obtain the required signature and that closing would occur as soon as the signature was obtained. At that point, no one from Bermont Lakes was told exactly what the "signature problems" were.

Also on April 18, Bermont Lakes was provided with a commitment for title insurance issued on the 160 acres that were the subject of the parties' contract. Schedule A of this title insurance commitment indicated that the Trust was the fee simple owner of all 160 acres. However, Schedule B indicated that the Trust would need a deed from one Leeshawn Norris conveying her interest in 40 of the 160 acres before it could convey clear title to the full 160 acres. Nothing in the commitment for title insurance explained the apparent discrepancy in the ownership interests listed on Schedules A and B or explained what interest Ms. Norris allegedly had in the 40-acre parcel. In addition, nothing in the record shows that anyone from Bermont Lakes received a copy of the commitment for title insurance before the scheduled closing date of April 18.

During the next few weeks, a representative of the Trust repeatedly told the transaction broker that he was working to obtain the signature needed to close on the transaction with Bermont Lakes. He also told the transaction broker that he represented Ms. Norris, that he did not believe that she had any actual legal interest in the 40-acre parcel identified in the commitment for title insurance, and that, if he had to, he would pay Ms. Norris $10,000 to obtain clear title to the 40-acre parcel. Based on these conversations, the transaction broker assured Bermont Lakes that the Trust would close on the transaction in the near future.

At some point in mid-May, Bermont Lakes learned that the delay was not caused by "signature problems" but instead was caused by the fact that the Trust did not actually own 40 of the acres included in the contract and that it needed the deed from Ms. Norris to obtain clear title to that 40-acre parcel. At that point, Bermont Lakes offered to do whatever it could to assist the Trust in obtaining clear title to the 40-acre parcel. In addition, Bermont Lakes offered to restructure the contract to purchase the original 120 acres plus a different contiguous 40-acre parcel. However, Bermont Lakes continued to seek the right to purchase the original 40-acre parcel once clear title was obtained. In response, the Trust continued to assure the transaction broker, and through him Bermont Lakes, that it was still working to close on the original contract.

At approximately the same time, the transaction broker learned from the Trust that Ms. Norris was demanding $400,000 for her interest in the 40-acre parcel. The transaction broker suggested to the Trust that the parties could still close on the transaction by restructuring the contract to include a different 40-acre parcel. A representative of the Trust told the transaction broker that he would convey this suggestion to the other trustees and get back with him.

When no further steps toward closing had occurred by June 2, the transaction broker sent both parties a letter indicating that because the transaction had not closed, he recommended that they each seek legal counsel. Subsequently, on June 13, Bermont Lakes sent a letter to the transaction broker asserting that it had a valid contract with the Trust for the 160 acres and that it was still willing to assist with whatever was needed to resolve the issue of the 40-acre parcel, including purchasing a different 40-acre parcel if that was necessary. However, Bermont Lakes continued to assert that it intended to close on the original contract if possible. Only after receiving this letter through the transaction broker did the Trust indicate, for the first time, that it would not close on the transaction.

Bermont Lakes subsequently sued the Trust in a two-count complaint. Count one sought specific performance on the contract. Count two sought an award of damages. Upon filing suit, Bermont Lakes also recorded a lis pendens against the contracted-for 160 acres. The Trust subsequently moved for summary judgment on only the specific performance count. At the hearing on the Trust's motion, the Trust argued that after it determined that it did not have clear title to the 40-acre parcel, it attempted to obtain clear title through negotiation with Ms. Norris. When negotiations failed, Ms. Norris sued the Trust in a declaratory judgment action, and the Trust settled that action by exchanging deeds with Ms. Norris. Through this exchange of deeds, Ms. Norris ended up as the "fee simple owner" of 20 acres of the 40-acre parcel.¹ Ms. Norris then sold her 20 acres to her attorney for $300,000. The Trust argued that because the contract price for the entire 160 acres was $960,000, the purchase of these 20 acres would have cost the Trust approximately 32% of the contract price. The Trust argued that it was not required to make this type of extraordinary expenditure in order to remedy a title defect and that because it could not convey clear title after a diligent effort, it should be relieved of its obligations under the contract.

In opposition to the motion, Bermont Lakes argued that there were disputed issues of material fact as to whether the Trust had made a good faith effort to obtain clear title to the 40-acre parcel and that, in any event, the Trust was obligated to convey the 120 acres to which it did have clear title. At the close of the hearing, the trial court entered a partial final summary judgment in favor of the Trust on the specific performance count. This partial final judgment also fully discharged the lis pendens. The damages count remains pending in the trial court. Bermont Lakes has appealed the partial final summary judgment to this court.

Jurisdictional Issue

We must first address the issue of whether this court has jurisdiction to entertain this appeal. Florida Rule of Appellate Procedure 9.110(k) permits appellate review of partial final judgments. However, an appeal of a partial final judgment relating to a single count of a multicount complaint may be taken only if that count constitutes a separate and distinct cause of action that is not interdependent with other pleaded claims. Mendez v. W. Flagler Family Ass'n, 303 So.2d 1, 5 (Fla. 1974); Fla. Lifestyles Realty, Inc. v. Goodwin, 917 So.2d 1060, 1061 (Fla. 2d DCA 2006). In determining whether a partial final summary judgment is final and appealable, this court considers three issues:

1. Could the causes of action disposed of in the dismissed count be maintained independently of each other?

2. Were one or more parties removed from the action when the partial summary judgment was entered?

3. Are the counts separately disposed of based on the same or different facts?

Fla. Lifestyles Realty, Inc., 917 So.2d at 1062 (citing Szewczyk v. Bayshore Props., 456 So.2d 1294, 1296 (Fla. 2d DCA 1984)). Here, the partial final judgment did not remove a party from the action, and resolution of both the specific performance counts and the damages count will be determined based on essentially the same underlying facts concerning the making of the contract and the events surrounding the failed closing. Accordingly, we conclude that we have no jurisdiction to review the partial final summary judgment as a final, appealable order because interrelated claims remain pending.

However, rule 9.040(c) provides that if a party seeks an improper remedy, this court shall treat the case as if the proper remedy had been sought. Thus, for example, in Norris v. Paps, 615 So.2d 735, 736 (Fla. 2d DCA 1993), this court treated an appeal from a final judgment of foreclosure as a petition for writ of certiorari when the final judgment of foreclosure was sufficiently final to permit the foreclosure sale to go forward even though an interrelated counterclaim for damages remained pending in the trial court. In light of these authorities, we have considered whether we can review the partial final summary judgment by some other means.

We note that this court and others have held that an order discharging a lis pendens may be reviewed...