Practice Highlights - February 11, 2021

Successful Defense of Developer's Claim for Specific Performance Regarding Purchase of Property

M & M Realty Partners, LLC v. Mazzoni in the United States Court of Appeals for the Eleventh Circuit

Jones Foster Litigation Shareholders Roberto M. Vargas and James C. Gavigan, Jr. successfully represented a Palm Beach County landowner in a lawsuit and subsequent court appeal brought by a developer seeking to compel specific performance regarding the purchase of an undeveloped 5-acre commercial parcel in Boynton Beach.

A purchase agreement was entered into between the landowner (seller) and developer (buyer) that provided for a six-year contingency period during which the buyer would obtain the necessary approvals for the development of the parcel. At the end of the contingency period, the seller refused to close because, among other reasons, the buyer had not obtained the necessary approvals. The buyer disagreed and claimed to be ready, willing, and able to close, filing suit against the seller for specific performance and breach of contract for damages. Further, the buyer sued one of the trustees of the seller arguing that he had used “improper means” to tortiously interfere with the agreement.

The United States Federal District Court Judge granted summary judgment on all counts in favor of the seller shortly before trial. The court found that the buyer, a special purpose entity, was not “ready, willing and able” to close because it did not have cash on hand, sufficient assets and credit rating, or a legally binding commitment to borrow the funds to close. The buyer attempted to rely upon the financial wherewithal of its ultimate principals to establish that it had a legally binding commitment, but they were insulated behind entities and a trust, and never personally committed in writing to loan the funds to close. The tortious interference claim also failed because the trustee was effectively acting as the seller trust and the trust could not be sued in tort for breach of contract.

The buyer appealed the summary judgment ruling to the 11th Circuit Court of Appeals. Following oral arguments, the appellate court affirmed the lower court ruling on all issues in a published opinion. The appellate court agreed under well-established Florida law that the buyer was not “ready, willing and able” to close because it did not have a legally binding commitment to borrow the necessary funds, regardless of the principals’ personal financial wherewithal. As to the tortious interference claim, the appellate court explained that the “improper means” test that the buyer tried to apply to the seller’s trustee only applied to true third-party interference situations, not when the alleged interfering party is an agent acting on behalf of one of the contracting parties.

About Rob Vargas
Rob Vargas practices statewide in the areas of complex commercial litigation, business torts, real property litigation, and eminent domain. Rob advises local and national clients on a variety of business disputes, including trade secrets, confidentiality agreements, non-compete agreements, business contracts, tortious interference, and breaches of fiduciary duties. Rob is an experienced litigator who represents his clients before Florida State and federal courts at the trial and appellate levels.

About Jamie Gavigan
Jamie Gavigan focuses his practice in the areas of land use and governmental law and complex commercial litigation with a particular emphasis on real estate, land use and zoning, eminent domain and property rights. Jamie represents clients in a wide variety of industries, including real estate, local government, hospitality, and medical, to obtain and defend land use and development approvals, and resolve disputes involving breach of contract, business torts, intellectual property, and property rights such as quiet title actions, encroachment, easement, and inverse condemnation. As an experienced litigator, Jamie regularly handles cases on behalf of corporations, municipalities, developers, and property owners in state and federal courts throughout Florida, including multidistrict class actions.

About Jones Foster

Jones Foster is a commercial and private client law firm headquartered in West Palm Beach, Florida. Established in 1924, the Firm has served as an integral part of South Florida’s growth and prosperity for nearly a century. Through a relentless pursuit of excellence, Jones Foster delivers original legal solutions that help clients, colleagues, and the community to move forward. The Firm’s attorneys focus their practice in Real Estate, Litigation & Dispute Resolution, Private Wealth, Trusts & Estates, Corporate & Tax, and Land Use & Governmental. For more information, please visit