Redington Grand, Llp v. Level 10 Properties

• Decision Date: 07 August 2009
• Docket Number: No. 2D08-4738.,2D08-4738.
• Citation: 22 So.3d 604
• Parties: REDINGTON GRAND, LLP, a Florida limited liability partnership, Appellant, v. LEVEL 10 PROPERTIES, LLC, a Florida limited liability company; Dennis Markley; Carl B. White; and Crystal White Montgomery, Appellees.
• Court: Florida District Court of Appeals

22 So.3d 604

REDINGTON GRAND, LLP, a Florida limited liability partnership, Appellant, v. LEVEL 10 PROPERTIES, LLC, a Florida limited liability company; Dennis Markley; Carl B. White; and Crystal White Montgomery, Appellees.

No. 2D08-4738.

District Court of Appeal of Florida, Second District.

August 7, 2009.

Rehearing Denied October 2, 2009.

Michael D. Allweiss, St. Petersburg, for Appellant.

Timothy W. Weber and Sean K. McQuaid of Battaglia, Ross, Dicus & Wein, P.A., St. Petersburg, for Appellees.

WALLACE, Judge.

Redington Grand, LLP, a Florida limited liability partnership (the Developer), challenges a final summary judgment in favor of Level 10 Properties, LLC, a Florida limited liability company; Dennis Markley; Carl B. White; and Crystal White Montgomery (collectively, the Buyers). Because the circuit court erred as a matter of law in concluding that a remedial limitation in the separate contracts between the Developer and the Buyers rendered the contracts illusory and unenforceable, we reverse the final summary judgment and remand for further proceedings.

THE FACTS

On June 15, 2005, each of the Buyers entered into separate but substantially identical preconstruction contracts with the Developer for the purchase and sale of a unit in a condominium project in North Redington Beach to be known as "The Redington Grand."¹ The project was relatively small; it had only twelve units. Level 10 Properties and Ms. Montgomery agreed to a purchase price of $2,200,000 each for their units. Mr. Markley and Mr. White agreed to a purchase price of $2,600,000 each for their units. Level 10 Properties and Ms. Montgomery each paid an initial deposit of $225,000, with a second deposit of $215,000 for each unit due upon completion of the roof. Mr. Markley and Mr. White each paid an initial deposit of $265,000, with a second deposit of $255,000 for each unit due upon completion of the roof.

The contracts called for the Developer to complete the project and obtain certificates of occupancy for the units on or before June 15, 2007. If the Developer failed to meet this deadline, the Buyers had the option to terminate the contracts and to receive the return of their deposits or to allow the Developer additional time to complete the project and close the sale of the units.

The default provisions of the contracts are of particular interest in this case. These provisions were as follows:

4. DEFAULT BY SELLER: If the Seller defaults under this Contract by a material (substantial) breach which shall not be cured and corrected by Seller within ten (10) days following receipt of written notice of such default from Buyer, then Buyer may either: 1) terminate this Contract in its entirety and receive a full refund of the First Deposit and the Second Deposit paid by Buyer; or 2) bring an action in a Court of competent jurisdiction to seek specific performance of this Contract by Seller.

5. DEFAULT BY BUYER: If the Buyer defaults under this Contract by a material (substantial) breach which shall not be cured and corrected by Buyer within ten (10) days following receipt of written notice of such default from Seller, then Seller may either: 1) terminate this Contract in its entirety and receive and retain the First Deposit and the Second Deposit paid by Buyer as liquidated and agreed upon damages since the amount of actual damages is incapable of ascertainment; or 2) bring an action in a Court of competent jurisdiction to seek specific performance of this Contract by Buyer.

Thus the contract limited the Buyers' remedy to the return of all deposits or specific performance. The Developer's remedy was limited to the retention of the Buyers' deposits or specific performance.

In January 2007, the Developer notified the Buyers that the roof was complete and that the second deposits were due and payable. When the Buyers did not pay the second deposits, the Developer's attorney notified the Buyers that they were in default under the contract for failure to pay the second deposits and gave them ten days to cure the claimed defaults. In response, the Buyers' attorney asserted that the roof was not complete and, accordingly, that the second deposits were not due. The Buyers' attorney also made multiple requests for assurances from the Developer that it would be able to complete the project and obtain the certificates of occupancy by June 15, 2007.² On March 8, 2007, having not received the assurances that they had demanded from the Developer, the Buyers declared that the Developer was in default under the contracts and demanded the return of their deposits.

Meanwhile, the Developer proceeded with construction and obtained the necessary certificates of occupancy for the units on May 9, 2007. The Developer scheduled closings for the four units with the Buyers for June 15, 2007, but the Buyers declined to close.

THE COURSE OF THE PROCEEDINGS

On March 30, 2007, the Buyers filed a single action against the Developer seeking the return of their initial deposits with interest.³ The Buyers' theory was that the Developer had breached the contracts by failing to comply with the Buyers' demands for adequate assurance of the Developer's ability to complete the project by June 15, 2007. Later, the Buyers amended their complaint to assert a claim that the remedial limitations in the contracts rendered them illusory and unenforceable. The Developer counterclaimed for specific performance or, in the alternative, for damages.

After conducting a substantial amount of discovery, the parties filed cross-motions for summary judgment. The Developer and the Buyers both sought summary judgment on the Buyers' claim that the remedial limitations in the contracts rendered the contracts illusory and unenforceable. The Developer also moved for partial summary judgment on other issues.

THE CIRCUIT COURT'S ORDER

In an order on the cross-motions for summary judgment, the circuit court addressed only the issue of whether the remedial limitations in the contracts rendered the contracts illusory and unenforceable. The circuit court framed the issue before it as whether the remedial limitation that the contracts imposed on the Buyers "lacks mutuality and, if so, whether that lack of mutuality defeats the essential requirements to the formation of a bilateral contract." Relying on two cases involving claims under the Interstate Land Sales Full Disclosure Act, 15 U.S.C. §§ 1701-1720 (ILSA), the circuit court concluded that "the default provisions in the contract[s are] illusory and mutually unenforceable, as the [Developer] has no real obligation." Based on this conclusion, the circuit court granted the Buyers' motion for summary judgment and denied the Developer's motion for summary judgment. Afterward, the circuit court entered a final judgment awarding each of the Buyers the return of their initial deposit plus interest from the contract date and providing that the Developer would take nothing on its counterclaim.

THE STANDARD OF REVIEW

A summary judgment is proper only when there is no genuine issue of material fact and when the moving party is entitled to judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Accordingly, we apply a de novo standard to the review of a summary judgment. Id. Our review of the summary judgment in this case requires us to determine whether the circuit court correctly ruled as a matter of law that the remedial limitations in the contracts rendered the contracts illusory and unenforceable.

DISCUSSION

The contracts under review in this case impose limitations on both parties relating to the recovery of damages. In the event of a default by the Buyers, the Developer may retain their deposits as liquidated damages or bring an action for specific performance. On the other hand, in the event of a default by the Developer, the Buyers may either obtain the return of their deposits or bring an action for specific performance. Thus both parties may seek specific performance of the contract. But if the Developer elects not to pursue the remedy of specific performance, it may recover damages by retaining the Buyers' deposits. But unlike the Developer, the Buyers are effectively barred from seeking damages. "A return of one's own money hardly constitutes damages in any meaningful sense." Ocean Dunes of Hutchinson Island Dev. Corp. v. Colangelo, 463 So.2d 437, 439 (Fla. 4th DCA 1985).

The Buyers correctly note that the contracts' remedial limitations favor the Developer. However, the Buyers led the circuit court into error by approaching the difference in the remedies available to the contracting parties as an issue relating to mutuality of obligation instead of mutuality of remedy. As this court has previously observed, "[m]utuality of obligation is sometimes confused with mutuality of remedy. Obligation pertains to the consideration while remedy pertains to the means of enforcement. Mutual obligation is essential, but the means of enforcement may differ without necessarily affecting the reciprocal obligations of the parties." Bacon v. Karr, 139 So.2d 166, 169 (Fla. 2d DCA 1962).

Here, the parties' contracts do not...