       Third District Court of Appeal
                               State of Florida

                           Opinion filed June 24, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D12-3072
                         Lower Tribunal No. 08-48505
                             ________________

                    Blue Lagoon Development, LLC,
                           Appellant/Cross-Appellee,

                                        vs.

            Albert Maury and Leon Medical Centers, Inc.,
                          Appellees/Cross-Appellants.



      An Appeal from the Circuit Court for Miami-Dade County, David C. Miller,
Judge.

     Ronald D. Poltorack (Boca Raton); Bales Sommers & Klein, P.A., Richard
M. Bales, Jr., for appellant/cross-appellee.

      William L. Richey and Catherine Shannon Christie, for appellees/cross-
appellants.

Before SALTER, FERNANDEZ and SCALES, JJ.

      PER CURIAM.
        This appeal, and the claims in the trial court, relate to a contract for the

purchase and sale of a large commercial real estate tract in Miami. Blue Lagoon

Development, LLC (“Blue Lagoon,” or “seller”), appeals the entry of final

summary judgment in favor of appellees/cross-appellants Albert Maury1 and Leon

Medical Centers, Inc. (collectively referred to as “Leon Medical Centers” or “the

buyers”). Leon Medical Centers filed a cross-appeal from a prior oral partial

summary judgment ruling in favor of Blue Lagoon authorizing Blue Lagoon to

pursue the equitable remedy of specific performance (as well as the forfeiture of

the buyer’s escrowed deposit) if a jury were to find that the buyer breached.

        We reverse the final judgment in favor of Leon Medical Centers based upon

a plain reading of the purchase contract. We dismiss the cross-appeal because we

lack jurisdiction to consider it.

                                    Factual Background

        Blue Lagoon agreed to sell its property to Leon Medical Centers in late 2007

after exchanging letters of intent and drafts of a purchase and sale agreement. At

the end of December 2007, the parties executed a purchase and sale agreement

providing for a purchase price of $23,575,000.00. A condition to close the deal

was that Blue Lagoon obtain a change in zoning from RU-2 to BU-2 by July 31,



1   Albert Maury is the former trustee of the purchase and sale agreement.


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2008. The purchase and sale agreement did not contain a “time is of the essence”

provision.

      In January of 2008, Blue Lagoon submitted an application for zoning, which

later included site plans dated April 11, 2008, and May 14, 2008. The county fire

and aviation departments had previously rejected the April plan. The May plan that

Blue Lagoon submitted for approval incorporated the correctional changes to the

April plan.

      Citizens Zoning and Appeals Board 8 (“CZAB8”) conducted a zoning

hearing on July 16, 2008, and hearing no objection to the change in zoning,

approved the application. The record is unclear as to which plan was submitted to

the board, but the hearing documents reflect that the April plan was submitted.

Blue Lagoon claims that only the May plan was presented at the hearing, and that

the May plan was approved. The misunderstanding is reflected in the Resolution

and the Declaration of Restrictions CZAB8 approved. Both documents reference

the April plan, not the May plan.2

      The Resolution approving the zoning was certified by a deputy clerk of the

Miami-Dade Department of Building and Zoning on July 23, 2008.                The

Resolution included a description of the plans in three places as “dated stamped


2   Record evidence in the trial court before the final summary judgment was
entered demonstrated that the reference to the applicable plans had been corrected
in the resolution and declaration of restrictions without a public hearing.

                                        3
received 4/11/08.”     Regarding the application presented by Blue Lagoon to

CZAB8 for approval, the Resolution recapped the favorable vote and stated that

“the same is hereby approved and said property is hereby zoned accordingly.”

(Emphasis provided). The enactment, though subject to a fourteen-day appeal

period (expiring August 4, 2008, a Monday), was not appealed. The parties’

contract did not specify whether the July 31, 2008, “Proposed Zoning” deadline

required that the change be approved by that date, or be “final” (no longer subject

to an appeal) by that date.

      Meanwhile, Leon Medical Centers closed on another parcel of real property

on July 11, 2008, for the same intended use, but for a price approximately $11

million less than its purchase price under the contract with Blue Lagoon. Leon

Medical Center’s attorney then sent a termination letter to Blue Lagoon on July 31,

2008. Leon Medical Centers claimed to be exercising its right to terminate the

contract because it maintained that Blue Lagoon did not obtain the requisite zoning

by July 31, 2008, given the possibility of an appeal after that date. As a result, the

medical facility that Leon Medical Centers originally was to build on the Blue

Lagoon site was instead built on the new parcel.

      Blue Lagoon sued Leon Medical Centers for breach of contract, seeking the

escrowed deposit, benefit-of-the-bargain damages, and specific performance. Leon

Medical Centers filed a counterclaim for return of the deposit.



                                          4
      Both parties moved for partial summary judgment on the issue of what

remedies would be available to Blue Lagoon if Blue Lagoon prevailed. Blue

Lagoon argued that Section 10(A) of the parties’ contract allowed it to recover the

deposit and benefit-of-the-bargain damages or specific performance, because that

section did not expressly exclude those remedies; Leon Medical Centers argued

that the contract limited Blue Lagoon’s remedy solely to retaining the deposit

which Leon Medical Centers had placed in escrow.

      Although no written order was entered on the parties’ cross-motions for

partial summary judgment regarding the remedies available to Blue Lagoon, a

review of the transcript discloses that the trial court purported to limit Blue

Lagoon’s monetary remedy to retaining the deposit, while also allowing Blue

Lagoon to pursue the equitable remedy of specific performance and money

damages.

      The remedies issue was ultimately deemed moot when, in October 2012, a

successor trial court judge entered final summary judgment in favor of Leon

Medical Centers, determining that Leon Medical Centers’ termination of the

contract was valid. At the hearing on Leon Medical Centers’ motion for final

summary judgment, the trial court expressly stated that it was not revisiting the

prior judge’s determination regarding the remedies available to Blue Lagoon.




                                        5
      Blue Lagoon appealed the trial court’s final summary judgment; Leon

Medical Centers cross-appealed the trial court’s oral partial summary judgment

purporting to authorize Blue Lagoon to both retain the escrow deposit and pursue

specific performance in the event Blue Lagoon prevails.

                                   Standard of Review

      The standard of review is de novo. See Markowitz v. Helen Homes of

Kendall Corp., 826 So. 2d 256, 259 (Fla. 2002); Tropical Glass and Constr. Co. v.

Gitlin, 13 So. 3d 156, 158 (Fla. 3d DCA 2009). Summary judgment evidence is to

be viewed most favorably to the non-moving party, and the trial court is not free to

weigh the evidence. See Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA

2000). We review the unambiguous contract terms de novo based on their plain

and ordinary meaning. E. Atl. Realty and Inv. Inc. v. GSOMR LLC, 14 So. 3d

1215, 1219 (Fla. 3d DCA 2009).

                     Effective Date of the Change in Zoning

      The contract required the seller to obtain the change in zoning “on or before

July 31, 2008 (the ‘Outside Date’),” but it did not address the prospect or effect of

an appeal. The pertinent dates relating to the rezoning are:

          The applicable zoning authority, CZAB8, approved the rezoning at its
           meeting of July 16, 2008, and declared that the zoning was changed to
           BU-2 and “PASSED AND ADOPTED” as of that date;

          The July 16, 2008, approval by CZAB8 was “posted” (announced to
           the public as provided by the County Code) on July 21, 2008;

                                          6
          The formal written Resolution of the rezoning approval was certified
           by the Clerk of the Miami-Dade Department of Building and Zoning
           on July 23, 2008. The Resolution stated, as already noted, that the
           application for the change to BU-2 “is hereby approved and said
           property is hereby zoned accordingly;” and

          The fourteen-day appeal period provided by County Code section 33-
           312 expired August 4, 2008, and no appeal was filed. Code section
           33-312 provides that “Decisions of the Community Zoning Appeals
           Boards are final and may be appealed to circuit court pursuant to
           section 33-36 [not applicable in this case] provided however within
           fourteen (14) days, but not thereafter, decisions of the Community
           Zoning Appeals Boards as specified in Section 33-314 shall be
           appealed to the Board of County Commissioners.” (Emphasis
           supplied).

      Based on these dates, the absence of express contract language requiring that

any appeal period have expired before the “Outside Date” of July 31, 2008, and

our “time is of the essence” analysis which follows, we conclude that the subject

property was rezoned from RU-2 to BU-2 by the local Community Zoning Appeal

Board having the power to enact such a rezoning, as of July 16, 2008. The fact

that an appeal might have been filed after that is a transparently makeweight

argument—because no such appeal was in fact filed and Leon Medical Centers has

never attempted to show prejudice flowing from that hypothetical circumstance.3

                           Was Time of the Essence?


3  Leon Medical Centers’ closing on its lower-price alternative property occurred
five days before the CZAB8 hearing on the rezoning relating to the Blue Lagoon
property, a point at which it did not know whether the change in zoning would be
approved.

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      Leon Medical Centers argues that, although the agreement did not include an

express “time is of the essence” clause, Florida courts have held that the clause

does not have to be expressed in situations where a clear and defined deadline or

timetable for action or performance has been established between the parties. See

Treasure Coast, Inc. v. Ludlum Constr. Co., 760 So. 2d 232, 235 (Fla. 4th DCA

2000) (stating that “[a]lthough the agreement in this case did not contain a ‘time is

of the essence’ clause, the terms in this agreement clearly contained [an] express

provision . . . [to be performed by] a specific date”). In that case, however, the

issue was a payment deadline under a settlement agreement, the agreement

specified a ten-day grace period, and the grace period had expired. No “time is of

the essence” provision was necessary, because:

      In the absence of an express agreement otherwise, a debtor owes his
      creditor nothing less than the unconditional delivery of money on or
      before the last day specified for payment. See Enriquillo Export &
      Import, Inc. v. M.B.R. Indus., Inc., 733 So. 2d 1124, 1127 (Fla. 4th
      DCA 1999).

Id. at 234.

      A different analysis is appropriate when the deadline for performance of a

non-monetary condition is specified and the contract lacks a “time is of the

essence” provision. See Command Sec. Corp. v. Moffa, 84 So. 3d 1097, 1100

(Fla. 4th DCA 2012) (the mere designation of a particular date for performance of

such a condition does not make that date the essence of the contract; time is not of



                                         8
the essence, even in an agreement setting forth a specific date for performance,

absent a showing that reasonable delay would have constituted a material breach or

that the party entitled to performance suffered a significant injury due to the delay

in performance).

      For all these reasons, the effective date of the change in zoning was an issue

of law based on the unambiguous language of the contract, and the final summary

judgment in favor of Leon Medical Centers must be reversed.

                     Issue of Fact Regarding the Approved Plans

      The legal issue pertaining to the effective date of the zoning change does not

end the inquiry, however. As an independently-sufficient basis for the reversal of

the final summary judgment, the record discloses that the timely zoning change is

alleged to have been at risk or defective because of the error in the designation of

the applicable site plans in the Resolution and the Declaration of Restrictions.

Leon Medical Centers alleged, and its expert supported the allegation with an

affidavit, that the discrepancy jeopardized the effectiveness of the zoning change,

thereby making the pre-July 31 compliance illusory.

      Blue Lagoon and its expert filed summary judgment evidence in opposition,

asserting that the discrepancy was at worst a scrivener’s error that could be (and

later was) corrected without a public hearing or revocation of the zoning change.

On the state of the present record, this conflicting evidence creates a genuine issue



                                         9
of material fact regarding the viability of the zoning change following the approval

by CZAB8.4 For that reason as well, the final summary judgment must be reversed

and remanded for further proceedings. Sierra, 767 So. 2d at 524.

                       Cross-appeal Regarding Remedies

      Leon Medical Centers filed and served a cross-appeal from the trial court’s

verbal ruling granting Blue Lagoon a partial summary judgment on the issue of

available remedies. The trial court, having considered the non-reciprocal remedies

available to the parties on breach, orally announced to the parties that Blue Lagoon

would be permitted to seek specific performance, but not benefit-of-the-bargain

damages, in addition to a claim for the escrowed deposit. The contract provisions

specified:

             10. Default.

                   A. If Buyer breaches this Agreement, then Seller, [sic]
      shall keep all deposit monies and interest earned thereon held by the
      Escrow Agent and Escrow Agent shall pay such sums over to Seller
      pursuant to the procedure provided in the Escrow Terms.



4  Some of the competing expert testimony provided by the parties includes legal
opinions that invade the province of the trial court. See Gyongyosi v. Miller, 80
So. 3d 1070, 1075 (Fla. 4th DCA 2012); Consol. Mut. Ins. Co. v. Ramy, 238 So.
2d 431 (Fla. 3d DCA 1970). Other parts of that expert testimony, however, appear
to touch on matters of practice within the Miami-Dade Department of Building and
Zoning, and on the effect of the discrepancy in identification of the approved plans
(May versus April) on the buyer’s ability to use the property as intended post-
closing. On the current record, these appear to present questions of fact for the
jury.

                                        10
                    B. If Seller breaches this Agreement, Buyer may
      terminate this Agreement and thereupon shall at its option either be
      entitled to the immediate return of all deposit monies and the interest
      thereon or proceed to seek specific performance as its sole and
      exclusive remedies and relief hereunder.

(Emphasis provided).5

      We lack jurisdiction to consider the cross-appeal, however, as it was not

reduced to a written order. Bisson v. de Arellano, 909 So. 2d 917, 918 (Fla. 3d

DCA 2005); Rivera v. Dade County, 485 So. 2d 17 (Fla. 3d DCA 1986).

                                    Conclusion

      We reverse the final judgment in the main appeal, and we dismiss the cross-

appeal for lack of jurisdiction. We remand the case for further proceedings not

inconsistent with this opinion. 6




5 The oral pronouncement regarding the remedy issue was based on the use of the
word “shall” in Section 10(A) of the final contract and the deletion of the phrase
“and thereafter, seller may seek any and all remedies provided by law” from a draft
of that section.
6  The parties have raised additional arguments and issues that do not merit
extended discussion.

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