Xavier v. Leviev Boymelgreen Marquis Developers, LLC

• Decision Date: 21 November 2012
• Docket Number: No. 3D11–549.,3D11–549.
• Citation: 117 So.3d 773
• Parties: Maiko A. XAVIER and Gricell B. Perez, Appellants, v. LEVIEV BOYMELGREEN MARQUIS DEVELOPERS, LLC, Appellee.
• Court: Florida District Court of Appeals

117 So.3d 773

Maiko A. XAVIER and Gricell B. Perez, Appellants,

v.LEVIEV BOYMELGREEN MARQUIS DEVELOPERS, LLC, Appellee.

No. 3D11–549.

District Court of Appeal of Florida, Third District.

Nov. 21, 2012.

Maiko A. Xavier and Gricell B. Perez, in proper persons.

Akerman Senterfitt, and Dana A. Clayton, Miami, Nancy A. Copperthwaite, Miami,and Stacy J. Harrison, Miami, for appellee.

Before CORTIÑAS, ROTHENBERG, and LOGUE, JJ.

LOGUE, J.

On November 10, 2009, Maiko A. Xavier and Gricell B. Perez (“the Buyers”) commenced a lawsuit against Leviev Boymelgreen Marquis Developers, LLC (“the Developer”) for the return of a $175,000 deposit relating to a real estate transaction dating back to August 2, 2005. The Buyers' amended complaint was dismissed with prejudice on the grounds that it was filed outside the four-year statute of limitations. The Buyers appeal the dismissal.

If this case involved a standard cause of action for the violation of the terms of a real estate contract, it would be time-barred. The Buyers allege, however, that the transaction between the parties was far from usual. As a result of the Buyers' allegations, the statute of limitations defense cannot be conclusively established as a matter of law from the face of the complaint. For this reason, we reverse and remand.

I.

In the amended complaint at issue, the Buyers alleged that they signed a pre-construction agreement to purchase unit 5005 in the Marquis, a condominium being built at 1100 Biscayne Boulevard in Miami, Florida. Attached to the amended complaint is a copy of the thirteen-page, single-spaced sales agreement for unit 5005, which details the parties' rights and obligations. The sales agreement provides for, among other things, a purchase price of $875,000, an initial deposit of $87,500, and a subsequent deposit of an additional $87,500, cancellation within certain time limits, and return of deposits within thirty days of cancellation.

At this point, this straightforward real estate transaction detoured onto a road less traveled. The Buyers alleged that the sales agreement was canceled on August 2, 2005, the same day that it was signed. The Buyers attached to the amended complaint a signed and dated document entitled “Receipt, Agent Certification, and Cancellation Page,” which may support their claim in this regard.

The Buyers alleged that they canceled the sales agreement based upon the Developer's oral representation that they could “swap” unit 5005, which had a city view, for a different unit, which had a bay view. In reliance upon “the understanding that a forthcoming written Agreement would be provided to them reflecting the correct bayside-view condominium,” the Buyers left their initial deposit with the Developers, and even made a second deposit, on an unstated date. The Buyers alleged that they inquired on undated occasions regarding “delivery of the corrected written agreement.”

Although several years passed with the Developer holding the deposits and without a new written contract, the Buyers maintain that they had no reason for concern until almost four years later, when the Developers gave formal notice that the closing on unit 5005 would occur on August 17, 2009. Until that notice, the Buyers assert, they had no reason to believe that the Developer intended to enforce the original sales agreement. The Buyers ultimately filed an amended complaint sounding in unjust enrichment, conversion, and fraudulent inducement.

The Developer moved to...