359 So.3d 3
Fla. Dist. Ct. App.2023Background
- DiMauro and Owners formed 784 Lake Rogers, LLC with an amended operating agreement: Owners to deed and vacate their homestead property to the LLC; DiMauro to fund construction of a spec house; final membership/profits to be set after the Manager issues a Certificate of Completion and total capital contributions are known.
- DiMauro provided the construction contract, plans, preliminary budget, and paid for surveys, engineering, soil borings, and architectural work in furtherance of the project.
- COVID-19 caused deadline delays; the parties amended the agreement to extend Owners’ deed/vacate deadline to within 30 days after the Governor lifted the emergency order. The order was lifted May 4, 2020, but Owners did not vacate or deed the property.
- DiMauro sued for breach and sought specific performance to compel deed and vacation. Owners defended that the amended operating agreement was unenforceable for lack of mutuality of remedy and lack of consideration (capital contribution amount unspecified).
- Trial court found the agreement unenforceable (mutuality and consideration) and denied specific performance because money damages were adequate. The Fourth District reversed the unenforceability findings, affirmed denial of specific performance, and remanded for further proceedings. A concurrence urges limiting remand to fees/costs since DiMauro never pled damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mutuality of obligation/remedy | Agreement contains mutual promises; Owners had enforceable remedies if DiMauro breached | No mutuality because Owners could not have compelled DiMauro to build (they lacked specific-performance remedy) | Mutuality satisfied: remedies need not be identical so long as each party has an enforceable remedy; trial court erred finding lack of mutuality |
| Consideration | Mutual promises (and DiMauro’s performance expenditures) are sufficient consideration | No consideration because DiMauro’s capital contribution amount was unspecified and incomplete | Consideration present: mutual promises suffice and DiMauro’s partial performance cured any initial defect |
| Availability of specific performance | Specific performance is appropriate to compel deed/vacate | Damages are an adequate remedy at law; specific performance unnecessary | Specific performance denied: trial court discretion to refuse relief because monetary damages are adequate; affirmed |
| Scope of remand / relief allowed on remand | Appellant can proceed after reversal to obtain appropriate relief | Remand should be limited because appellant only pleaded specific performance and never sought damages | Majority remands for further proceedings; concurrence warns remand should be limited to fees/costs because appellant never sought damages in the trial court |
Key Cases Cited
- Free v. Free, 936 So. 2d 699 (Fla. 5th DCA 2006) (standard of review and principles for specific performance)
- Burger Chef Sys., Inc. v. Burger Chef of Fla., Inc., 317 So. 2d 795 (Fla. 4th DCA 1975) (mutuality of remedies requirement in equity)
- Con-Dev of Vero Beach, Inc. v. Casano, 272 So. 2d 203 (Fla. 4th DCA 1973) (mutuality of remedy need not be identical)
- Bacon v. Karr, 139 So. 2d 166 (Fla. 2d DCA 1962) (distinguishing mutuality of obligation and remedy)
- Thompson v. Shell Petroleum Corp., 178 So. 413 (Fla. 1938) (difference in remedies does not destroy mutuality if reasonable)
- Ferguson v. Carnes, 125 So. 3d 841 (Fla. 4th DCA 2013) (promises are valid consideration)
- Diaz v. Rood, 851 So. 2d 843 (Fla. 2d DCA 2003) (a slight promise can be sufficient consideration)
- Santos v. Gen. Dynamics Aviation Servs. Corp., 984 So. 2d 658 (Fla. 4th DCA 2008) (mutual promises and obligations support a contract)
- Wright & Seaton, Inc. v. Prescott, 420 So. 2d 623 (Fla. 4th DCA 1982) (performance can cure a lack of mutuality at inception)
- Hiles v. Auto Bahn Fed’n, Inc., 498 So. 2d 997 (Fla. 4th DCA 1986) (compensatory damages may be adequate remedy in land-sale contexts)
- Dober v. Worrell, 401 So. 2d 1322 (Fla. 1981) (appellate remand should not permit party to assert new relief not pleaded at trial)