227 So. 3d 1288
Fla. Dist. Ct. App.2017Background
- Allegro held a contractual right of first refusal on land owned by Pearson (Seller).
- Seller agreed to sell the parcel to Olson Land Partners (Buyer) but did not honor Allegro’s right; Allegro sued for breach, declaratory relief, injunction, damages, and specific performance.
- Trial court granted partial summary judgment for Allegro, finding the right of first refusal remained and the Seller breached it.
- Buyer later terminated the original purchase agreement and signed a new, higher-priced agreement with Seller; Seller gave Allegro ten days to exercise its right under the new deal.
- Allegro filed a motion seeking specific performance; the trial court denied it and later granted summary judgment to Buyer, finding Allegro had elected damages and that specific performance was unavailable because the underlying purchase agreement had been terminated.
- The Fourth District reversed, holding Allegro had not elected inconsistent remedies and that Allegro’s right of first refusal converted into an irrevocable option unaffected by termination of the underlying contract.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Allegro’s earlier pursuit of damages constituted an election of remedies barring specific performance | Allegro argued its earlier damages motion did not waive the right to later seek specific performance because the remedies are consistent | Buyer argued Allegro elected damages and therefore cannot later seek specific performance | Remedies were factually consistent; pursuing damages did not preclude later seeking specific performance absent full satisfaction |
| Whether termination of the Buyer–Seller contract eliminated Allegro’s right of first refusal | Allegro argued its right ripened into an irrevocable option once Seller contracted with Buyer, so termination did not defeat the option | Buyer argued termination of the purchase agreement ended Allegro’s ability to enforce the right | Right of first refusal converted to an irrevocable option upon Seller’s contract with Buyer and survived termination of that contract |
| Whether remedies (damages vs. specific performance) are factually inconsistent in this context | Allegro maintained both remedies affirm the same underlying transaction and can coexist | Buyer maintained damages and specific performance are incompatible here | Court held damages and specific performance both affirm the contract and are factually consistent |
| Whether the trial court properly granted summary judgment for Buyer on its declaratory counterclaim | Allegro argued summary judgment was erroneous because factual consistency and survivability of option remained unsettled | Buyer argued summary judgment appropriate because Allegro had elected damages and the option was gone | Trial court erred; summary judgment for Buyer reversed and case remanded |
Key Cases Cited
- Vasquez v. Sorrels Grove Care, Inc., 962 So.2d 411 (Fla. 2d DCA 2007) (standard of review for summary judgment on election-of-remedies finding)
- Sunbank, N.A. v. Retirement Facility at Palm-Aire, Ltd., 698 So.2d 392 (Fla. 4th DCA 1997) (party seeking specific performance bears equitable evidentiary burden)
- Sec. & Inv. Corp. of the Palm Beaches v. Droege, 529 So.2d 799 (Fla. 4th DCA 1988) (remedies must be factually consistent before applying election doctrine)
- Barbe v. Villeneuve, 505 So.2d 1331 (Fla. 1987) (example of factually inconsistent remedies)
- Kelsey v. Pewthers, 685 So.2d 953 (Fla. 4th DCA 1996) (money damages and equitable relief can be consistent in breach cases)
- Erwin v. Scholfield, 416 So.2d 478 (Fla. 5th DCA 1982) (seller’s damages and specific performance remedies consistent)
- Am. Process Co. v. Fla. White Pressed Brick Co., 47 So. 942 (Fla. 1908) (pursuing one consistent remedy does not waive others absent full satisfaction)
- Klondike, Inc. v. Blair, 211 So.2d 41 (Fla. 4th DCA 1968) (plaintiff estopped from other remedies only after satisfaction)
- Vorpe v. Key Island, Inc., 374 So.2d 1035 (Fla. 2d DCA 1979) (right of first refusal converts into irrevocable option when owner contracts to sell)
- King v. Hall, 306 So.2d 171 (Fla. 1st DCA 1975) (option created by ripened right of first refusal survives termination of underlying contract)