Friedberg v. O'Doyle Rules, LLC.

320 So.3d 837

James A. FRIEDBERG, Esq., and Samuel Isral, Esq., AS CO-TRUSTEES OF the ERVIN AND SUSANNE BARD FAMILY TRUST, Appellants,

v.O'DOYLE RULES, LLC., Appellee.

Case No. 2D20-1417

District Court of Appeal of Florida, Second District.

Opinion filed April 14, 2021.

Todd M. Hoepker of Todd M. Hoepker, P.A., Orlando, for Appellant.

Eric S. Koenig and Bradley A. Muhs of Trenam, Kemker, Scharf, Barkin, Frye, O'Neil & Mullis, P.A. Saint Petersburg, for Appellee.

ATKINSON, Judge.

James A. Friedberg and Samul Israel, Trustees of the Ervin and Susanne Bard Family Trust (the Trust), appeal the entry of a summary judgment granting specific performance in favor of O'Doyle Rules, LLC (O'Doyle). We reverse.

On February 8, 2018, the Trust entered into a $1,850,000 contract for the sale of real property to O'Doyle. SunTrust Bank, a tenant at the property, had the right of first refusal pursuant to the long-term lease agreement with the Trust (the Lease). Paragraph 46 of the Lease (the right of first refusal) provides the following:

If, at any time during the term of this Lease, provided Tenant is not then in default under this Lease, the Landlord desires to sell the Premises or has received an offer to purchase the Premises which the Landlord is prepared to accept, the Landlord shall first notify the Tenant of Landlord's intentions with respect thereto. In such notice the Landlord shall specify the terms and conditions upon which it is prepared to accept an offer to purchase the Premises. Thereafter, the Tenant shall have the right, by notice to the Landlord within thirty (30) days after receipt of such notification, to require the Landlord to sell the Premises to the Tenant upon the terms and conditions specified in the Landlord's notice to the Tenant. If the Tenant shall so notify the Landlord the parties shall execute an appropriate formal purchase and sale agreement incorporating those terms and conditions relative to title and the mechanics of closing such sale as are appropriate to Landlord's notice to Tenant. Thereafter, the Parties will promptly close the purchase and sale. ...

If the Tenant shall not give notice to the Landlord of its desire to purchase the Premises within such 30 day period, then, and only then, the Landlord shall have the right to conclude a sale with any other person, or the person initially making the offer so long as in all material respects the business terms and conditions of the transaction which Landlord concludes are fairly comparable to the business terms and conditions proposed in Landlord's notice to Tenant, and so long as such negotiations and the sale are concluded within one hundred fifty days from the date of Landlord's original notice to the Tenant.

Paragraph 10 of the sales contract between the Trust and O'Doyle made waiver of SunTrust's right of first refusal a condition precedent to closing:

10. Seller's Conditions to Closing. Seller's obligation to sell the Property to Buyer is subject to satisfaction or waiver by Buyer of the following conditions, which are for Seller's benefit only: ...

10.2 Right of First Refusal. Tenant shall have waived its right of first refusal under Section 46 of the Lease, or Tenant shall not have exercised its right of first refusal within the exercise period.

The Trust notified SunTrust of the sales contract with O'Doyle and provided SunTrust thirty days to exercise its option under the Lease. SunTrust declined.

Before the close of the contractual due diligence period,¹ O'Doyle offered the Trust a reduced sales price of $1,800,000 with an expedited closing date on or before March 14, 2018, which the Trust accepted (the Addendum). Pursuant to Paragraph 46 of the Lease, on March 6, 2018, eight days before the expedited closing date, the Trust provided SunTrust with notice of O'Doyle's offer to purchase the property at a reduced price. When it became clear that SunTrust would not be able...