       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

        THE ALLEGRO AT BOYNTON BEACH, L.L.C., a Florida
                   Limited liability company,
                           Appellant,

                                     v.

         C. BRUCE PEARSON, an individual, and OLSON LAND
                       PARTNERS, LLC,
                           Appellees.

                              No. 4D16-4299

                            [October 25, 2017]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Meenu Sasser, Judge; L.T. Case No. 2015-CA-007970.

  Wade McK. Hampton and Theresa M. Kenney of Duss, Kenney, Safer,
Hampton & Joos, P.A., Jacksonville, for appellant.

  James S. Telepman of Cohen, Norris, Wolmer, Ray, Telepman & Cohen,
North Palm Beach, for appellee, Olson Land Partners, LLC.

GROSS, J.

   This dispute is between a plaintiff, who holds a right of first refusal to
purchase real property, and a defendant property owner who failed to
honor that right. The primary issue on appeal is whether the plaintiff
made an election of remedies that prevented it from seeking specific
performance. Because we hold that the plaintiff did not make such an
election of remedies, we reverse.

                                   Facts

   The Allegro at Boynton Beach, LLC held a right of first refusal to a
parcel of land owned by C. Bruce Pearson (the Seller). The Seller entered
into an agreement to sell the property to Olson Land Partners, LLC (the
Buyer), and refused to honor Allegro’s right of first refusal. Allegro sued
the Seller for breach of contract seeking damages, a declaratory judgment,
injunctive relief, and specific performance. The trial court allowed the
Buyer to intervene.
   Allegro moved for “Partial Summary Judgment as to Counts I and II of
the Complaint for Breach of Contract and Declaratory Judgment.” The
last line of Allegro’s memorandum of law in support of its motion reads:
“Upon election of its remedy, Allegro will be able to either seek damages,
specific performance or injunction.”

    The trial court granted Allegro’s motion, finding: (1) Allegro’s right of
first refusal remained in effect; and (2) the Seller failed to comply with
Allegro’s right of first refusal.

    Two days later, in an attempt to evade Allegro’s pursuit of its right of
first refusal, the Buyer terminated the first agreement to purchase the
parcel, and then signed a new agreement with the Seller to purchase the
same parcel ― this time at a considerably higher purchase price with a
shortened inspection period. The Seller delivered the new agreement to
Allegro giving it ten days to exercise its right of first refusal.

   Instead, Allegro filed a “Motion for Entry of Final Judgment of Specific
Performance Upon Election of Remedy.” Allegro’s motion was summarily
denied. 1

   The Buyer filed a counterclaim for declaratory judgment followed by a
motion for summary judgment on the counterclaim. The trial court
granted the Buyer’s motion, finding that Allegro made an election of
remedies to recover damages for breach of contract, and that the original
purchase agreement was no longer valid and enforceable. The court held
that “other than recovering damages for the breach of the right of first
refusal, Allegro has no further rights with respect to the original purchase
agreement.”

                                    Analysis

   When a trial court grants a motion for summary judgment upon a
finding that the plaintiff made an election of remedies, this court’s
standard of review is de novo. Vasquez v. Sorrels Grove Care, Inc., 962 So.
2d 411 (Fla. 2d DCA 2007).



1 We find no error in the denial of Allegro’s motion. The order granting Allegro’s
motion for summary judgment established only that the Seller breached the
parties’ agreement. If Allegro chooses to pursue the remedy of specific
performance, it bears the evidentiary burden of establishing its entitlement to
this equitable remedy. See Sunbank, N.A. v. Retirement Facility at Palm-Aire, Ltd.,
698 So. 2d 392 (Fla. 4th DCA 1997).

                                       -2-
   The purpose of the election of remedies doctrine is to prevent double
recovery for a single wrong. However, when a party elects a remedy that
is unavailable, application of the doctrine serves as an instrument of
injustice. For that reason, prior to imposing the doctrine, courts must
carefully consider the facts of each case. Sec. & Inv. Corp. of the Palm
Beaches v. Droege, 529 So. 2d 799, 802 (Fla. 4th DCA 1988).

   Before a trial court can apply the election of remedies doctrine, it must
determine whether the remedies are factually consistent. A party may not
obtain judgment for two remedies that are factually inconsistent. Barbe
v. Villeneuve, 505 So. 2d 1331 (Fla. 1987) (the remedy of triple damages
for theft of purchase price was factually inconsistent with the remedy of
replevin and clear title based on ownership by purchase).

   Remedies are factually consistent when they “logically can coexist on
the same facts.” Droege, 529 So. 2d at 802. Remedies are factually
inconsistent when one remedy “implies negation of the underlying facts
necessary for the other.” Id.

   The trial court found that Allegro’s damages remedy was “incompatible”
with Allegro’s specific performance remedy. However, Allegro’s remedies
in this case were factually consistent because both affirm the underlying
transaction. Allegro’s damages remedy affirms the transaction and seeks
recompense for the Owner’s breach. Allegro’s specific performance remedy
also affirms the transaction and seeks full performance by the Owner. See
Kelsey v. Pewthers, 685 So. 2d 953, 956 (Fla. 4th DCA 1996) (“money
damages and equitable relief are not inconsistent remedies; rather both
rely on the validity of a contract and seek redress for its breach.”); Erwin
v. Scholfield, 416 So. 2d 478, 479 (Fla. 5th DCA 1982) (finding that in a
breach of contract context, a seller’s damages remedy is factually
consistent with a seller’s specific performance remedy). Because the
remedies sought by Allegro rely on the same set of facts, they were factually
consistent.

    When remedies are factually consistent, the “mere election or choice to
pursue one of such remedies does not operate as a waiver of the right to
pursue the other remedies.” Am. Process Co. v. Fla. White Pressed Brick
Co., 47 So. 942, 944 (1908). Where remedies are factually consistent, “only
a full satisfaction of the right asserted will estop the plaintiff from pursuing
her other consistent remedies.” Id.; see also Droege, 529 So. 2d at 802;
Klondike, Inc. v. Blair, 211 So. 2d 41, 42 (Fla. 4th DCA 1968) (a plaintiff is
considered to have elected among consistent remedies only “where the
remedy pursued results in satisfaction of the claim.”).


                                      -3-
    Here, the trial court erred in finding that Allegro’s motion for summary
judgment on its damages claim estopped it from later electing to pursue
its specific performance claim. The remedies were factually consistent and
only full satisfaction of the damages claim would estop Allegro from
pursuing its specific performance claim.

   Allegro also argues that the trial court erred in finding that the remedy
of specific performance was no longer available because the Buyer and
Seller terminated the underlying purchase agreement. We agree.

    When an owner enters into a contract for sale, a pre-existing right of
first refusal is “converted into an irrevocable option to purchase.” Vorpe
v. Key Island, Inc., 374 So. 2d 1035, 1037 (Fla. 2d DCA 1979); see
1 Williston on Contracts, §§ 5:15, 5:16, 5:18 (4th ed. May 2017). Once a
holder’s right of first refusal ripens into an option, the option is not affected
by termination of the underlying contract. Vorpe, 374 So. 2d at 1037; see
also King v. Hall, 306 So. 2d 171, 173 (Fla. 1st DCA 1975).

   Here, once the Seller entered into the purchase agreement with the
Buyer, Allegro’s right of first refusal was converted into an irrevocable
option to purchase. The Buyer’s subsequent termination of the purchase
agreement did not affect Allegro’s option. The trial court erred in finding
that the termination of the purchase agreement divested Allegro of its
option to exercise its right of first refusal.

  We reverse the trial court’s grant of summary judgment to the Buyer
and remand for further proceedings.

CIKLIN and KLINGENSMITH, JJ., concur.

                             *         *          *

   Not final until disposition of timely filed motion for rehearing.




                                      -4-
