Third District Court of Appeal
State of Florida
Opinion filed January 19, 2022.
Not final until disposition of timely filed motion for rehearing.
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Nos. 3D21-0019, 3D21-123 & 3D21-124
Lower Tribunal No. 14-0944
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IMC Group, LLC and
InterAmerican Medical Center Group, LLC,
Appellants/Appellees,
vs.
Outar Investment Company, LLC,
Appellee/Appellant.
Appeals from the Circuit Court for Miami-Dade County, Mark
Blumstein, Judge.
Herrera Law Firm, P.A., and Jose-Trelles Herrera, for
appellants/appellees.
Hernandez Lee Martinez, LLC, and Jermaine A. Lee and Eric
Hernandez, for appellee/appellant.
Before EMAS, LINDSEY, and HENDON, JJ.
PER CURIAM.
In these consolidated appeals, Outar Investment Company, plaintiff
below, appeals a final summary judgment entered in favor of defendant
below, InterAmerican Medical Center Group, LLC, on its claim for breach of
contract and declaratory judgment. In turn, InterAmerican appeals final
judgment on the pleadings on its claim for specific performance. Lastly,
InterAmerican and non-party IMC Group, LLC appeal the trial court’s denial
of IMC Group’s motion to substitute as a real party in interest or, alternatively,
motion to intervene. 1 We affirm.
In 2013, InterAmerican contracted to purchase the commercial
shopping center it was subletting from Outar. In exchange for $1.55 million,
Outar agreed to deliver marketable title. In the event InterAmerican
breached, the parties agreed that Outar could either terminate the contract
and retain the deposit of $5,000 as liquidated damages or seek specific
performance. After the parties failed to close, Outar filed suit against
InterAmerican.
In its operative complaint, Outar asserted a claim for breach of contract
for actual damages and declaratory judgment that the liquidated damages
1
“An order denying a motion to intervene is final as to the movant and
appealable by the movant.” F.Y.E.S. Holdings, Inc. v. House Golden Rule,
LLC, 46 Fla. L. Weekly D1157 (Fla. 3d DCA May 19, 2021).
2
provision of $5,000 was unconscionably low and therefore unenforceable. 2
In its operative answer, InterAmerican asserted a compulsory counterclaim
for specific performance. However, the counterclaim did not expressly state
that Outar had breached.
In 2014, InterAmerican moved for summary judgment on Outar’s
complaint. At the hearing, the trial court noted that the only issue for it to
resolve was whether the liquidated damages provision was enforceable,
stating:
There’s a clause in the contract that provides for remedies
upon a buyer defaulting or not going forward with the contract
that provides for either payment of the deposit of $5,000.00 or
specific performance . . . . And the Defendant, at this point, has
admitted that Plaintiff may seek specific performance. So, the
issue is, is the $5,000.000 a penalty—well, not is it a penalty, but
is it unconscionably low?
Both parties assented to the trial court’s recitation of the issue. The
trial court held that the provision was not unconscionable and entered final
summary judgment in favor of InterAmerican. 3
2
Outar initially sought damages and specific performance. But after
InterAmerican amended its answer to the complaint and admitted Outar was
entitled to specific performance, Outar amended its complaint and dropped
its claim for specific performance.
3
Outar appealed the trial court’s ruling which this Court dismissed as
premature because InterAmerican’s counterclaim was pending below. Outar
Inv. Co., LLC v. InterAmerican Med. Ctr. Grp., LLC,
300 So. 3d 617 (Fla. 3d
DCA 2019).
3
In 2019, IMG Group moved to substitute as the real party in interest or
to intervene pursuant to a 2016 assignment agreement with InterAmerican.
There is no transcript of that hearing for our review.
Then in December 2020, the trial court held a hearing on Outar’s
motion for judgment on the pleadings on InterAmerican’s counterclaim for
specific performance. The trial court granted the motion because
InterAmerican’s counterclaim failed to allege that Outar had breached. The
parties all timely appealed.
We affirm without further discussion the trial court’s order granting
summary judgment in favor of InterAmerican. See Volusia County v.
Aberdeen at Ormond Beach, L.P.,
760 So. 2d 126, 130 (Fla. 2000)
(“Summary judgment is proper if there is no genuine issue of material fact
and if the moving party is entitled to judgment as a matter of law.”).
We also affirm the trial court’s order granting Outar judgment on the
pleadings on InterAmerican’s counterclaim for specific performance because
it failed to allege a breach. “The standard of review for an order granting a
motion for judgment on the pleadings is de novo. This is the same legal test
that governs a motion to dismiss for failure to state a cause of action.” Buade
v. Terra Grp., LLC,
259 So. 3d 219, 222 (Fla. 3d DCA 2018) (citations
omitted). “Upon a breach of contract by the buyer on his contract to
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purchase land, the seller generally has two alternative remedies available:
1) he may sue to compel specific performance and, as an incident to such
relief, may be awarded damages for the injuries he has suffered or 2) he may
retain the property and sue for breach of contract.” Frank Silvestri, Inc. v.
Hilltop Devs., Inc.,
418 So. 2d 1201, 1203 (Fla. 5th DCA 1982). To assert
either claim, a buyer must adequately plead: “(1) a valid contract; (2) a
material breach; and (3) damages.” Friedman v. New York Life Ins. Co.,
985
So. 2d 56, 58 (Fla. 4th DCA 2008). The record before us clearly
demonstrates that InterAmerican failed to allege a breach, so its
counterclaim for specific performance fails as a matter of law.
Lastly, because there is no transcript for our review, we cannot say
that the trial court abused its discretion in denying IMC Group’s motion to
intervene. See Charry v. Torres,
263 So. 3d 238 (Fla. 3d DCA 2019);
Applegate v. Barnett Bank of Tallahassee,
377 So. 2d 1150, 1152 (Fla. 1979)
(“In appellate proceedings the decision of a trial court has the presumption
of correctness and the burden is on the appellant to demonstrate error.”).
Affirmed.
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