### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

THE ALLEGRO AT BOYNTON BEACH, L.L.C., a Florida

L imited liability company

, Appellant,

v.

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

.

No. 4D 16

- 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 app ellant.

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

G ROSS
, J.

Th is 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 th at right

. Th e primary issue on appeal is whether the plaintiff

made an election of remed ies that prevented it from seeking specific performance. Because we hold that the plaintiff did not make such an electi on of remedies, we reverse.

Facts

The Allegro at Boynton Beach, LLC h e ld 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 Buye r), 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.- 2

- Allegro move d for “P artial S ummary J udgment 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 ei ther seek damages, specific performance or injunction. ”

The trial court granted Allegro’s motion, finding: (1) Allegro’s right of

first refusal remain ed in effect; and (2) t he 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 considerab ly higher purchase price with a shortened inspection period. The S eller 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 ma de 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 ha s 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).- 3

- 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 t riple 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 whe n they “logically can coexist on

the same facts.” Droege , 529 So. 2d a t 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 b oth 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 af firms 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 redr ess 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

. Pr ocess Co. v. Fl a. 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.”).- 4

- Here, the trial court erred in findin g 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

pur suing 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 p urchase a greement with the Buyer, Allegro’s right of first refusal was converted into an irrevocable option to purchase. The Buyer’s subsequent termina tion of the p urchase

a greement did not affect Allegro’s option. The trial court erred in finding

that the termination of the purchase agreement divest ed 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 proceeding s.

C IKLIN and K LINGENSMITH

, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.