University Housing by Dayco Corp. v. Foch , 221 So. 3d 701 ( 2017 )

Third District Court of Appeal
State of Florida
Opinion filed May 17, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-1268
Lower Tribunal No. 14-22598
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University Housing by Dayco Corp.,
Appellant,
vs.
Rogelio Foch, etc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, John W.
Thornton, Jr., Judge.
Coffey Burlington, P.L., and Robert K. Burlington and Daniel F. Blonsky,
for appellant.
DLA Piper LLP, and Ryan D. O’Quinn and Michael A. Greenfield, for
appellee.
Before ROTHENBERG, SALTER, and FERNANDEZ, JJ.
ROTHENBERG, J.
University Housing by Dayco Corporation (“UHDC”) appeals the trial
court’s entry of a final summary judgment in favor of Rogelio Foch (“Foch”), as
guardian of the person and property of Redovaldo Foch,1 on UHDC’s breach of
contract and unjust enrichment claims. For the reasons that follow, we affirm.
BACKGROUND
On May 17, 2013, Foch entered into a Memorandum of Agreement
(“MOA”) with Dayco Properties, LLP (“Dayco”). Pursuant to Article II of the
MOA, Dayco was required to file the Articles of Organization for a new
development company, obtain financing to construct a fifteen story student housing
complex, and obtain a payment and performance bond in favor of the development
company. Contemporaneous with Dayco’s funding of the construction loan, the
MOA obligates Foch to transfer title of real property owned by Foch’s ward (“the
Guardianship Property”) to the new development company. However, on June 28,
2013, prior to forming and filing the Articles of Organization for a development
company or obtaining the funding required under the MOA, Dayco purportedly
assigned its interest in the yet to be formed development company to UHDC.
On July 3, 2013, Luis D’Agostino, the sole shareholder and sole director of
UHDC, filed the Articles of Organization of the new development company, the
1 During the pendency of this appeal, Redovaldo Foch passed away, and Rogelio
Foch, as personal representative of Redovaldo Foch’s estate, has been substituted
as the Appellee.
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Suites at University City, LLC (“The Suites”). Neither Dayco nor UHDC has
provided the funding for the project, as required by the MOA.
Despite the failure of either Dayco or UHDC to fund the construction
project, UHDC demanded that Foch convey the Guardianship Property to The
Suites and invoked Article III of the MOA, which permits Dayco or, based on the
assignment, UHDC to “dispose” of its membership interest in the development
company, The Suites, and to require Foch to likewise “dispose” of his membership
interest in The Suites. Foch refused to convey the Guardianship Property to The
Suites based on, among other grounds, Dayco’s and/or UHDC’s failure to fund the
construction of the project.
On September 2, 2014, UHDC filed suit against Foch, and in its second
amended complaint sought specific performance of the MOA based on Foch’s
failure to convey the Guardianship Property to The Suites. In the alternative,
UHDC pled an unjust enrichment claim based upon the alleged benefit UHDC
claims Foch has received as a result of UHDC’s efforts regarding the project. Foch
filed a motion for summary judgment on all of UHDC’s claims, arguing, among
other things, that: (1) UHDC lacked standing to bring a breach of contract action;
(2) Foch was not obligated to transfer the Guardianship Property because UHDC
failed to comply with conditions precedent in the MOA; and (3) UHDC’s claim for
unjust enrichment fails because Foch did not receive any benefit from UHDC.2
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The trial court, interpreting the MOA, found that “the sine qua non of
[Foch’s] performance under the MOA was the conveyance of real property
contingent upon performance of the enumerated specified conditions precedent by
Dayco for purposes of complying with the requirements of the Capital
Contribution provisions of the MOA.” However, instead of filing the Articles of
Organization for The Suites and performing its capital contribution obligations by
securing funding for the project, Dayco assigned its interests to UHDC. The trial
court also found that the purported assignment from Dayco to UHDC was invalid
because, at the time of the assignment, Dayco’s interest in The Suites did not exist
and UHDC had not been created. Accordingly, the trial court concluded that Dayco
never performed its obligations under the MOA and that UHDC lacked standing to
bring this suit. The trial court additionally found that UHDC could not prevail on
its unjust enrichment claim because all of the alleged benefits benefited The Suites
and/or UHDC, not Foch, because The Suites is solely owned by UHDC. The trial
court thus entered an order granting final summary judgment as to all of UHDC’s
causes of action, and UHDC appeals that order.
ANALYSIS
We review the trial court’s ruling on a motion for summary judgment de
novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla.
2Although the trial court also ruled on other motions for summary judgment in the
same order, those rulings are not before us on appeal.
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2000) (“Summary judgment is proper if there is no genuine issue of material fact
and if the moving party is entitled to a judgment as a matter of law.”). Where the
resolution of the issues in the lawsuit depends on the construction and legal effect
of a contract, “the question at issue is essentially one of law only and determinable
by entry of summary judgment.” Id. at 131 (quoting Cox v. CSX Intermodal, Inc.,
732 So. 2d 1092, 1096 (Fla. 1st DCA 1999)).
“Under well established contract law, a condition precedent is a condition
which calls for the performance of an act after a contract is entered into, upon the
performance or happening of which its obligation to perform is made to depend.”
Racing Props., L.P. v. Baldwin, 885 So. 2d 881, 882-83 (Fla. 3d DCA 2004). “A
condition may be either a condition precedent to the formation of a contract or a
condition precedent to performance under an existing contract.” Mitchell v.
DiMare, 936 So. 2d 1178, 1180 (Fla. 5th DCA 2006). “Conditions precedent to an
obligation to perform are those acts or events, which occur subsequently to the
making of a contract, that must occur before there is a right to immediate
performance and before there is a breach of contractual duty.” Land Co. of Osceola
Cty., LLC v. Genesis Concepts, Inc., 169 So. 3d 243, 247 (Fla. 4th DCA 2015)
(emphasis in original) (quotation omitted).
In the instant case, the MOA contains the following conditions precedent:
“Upon execution of this AGREEMENT [Dayco] shall cause to be filed . . . Articles
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of Organization for the Development Company, and to thereafter cause both
private equity investment and commercial financing to be funded
(‘CONSTRUCTION LOAN’) sufficient to complete the PROJECT in the manner
agreed by the PARTIES.” Section 2.02(B) contains a list of obligations which are
to be performed “[c]ontemporaneous with funding the CONSTRUCTION
LOAN.” (emphasis added). One of the obligations to be performed
contemporaneous with the funding of the construction loan is Foch’s transfer and
conveyance of the Guardianship Property to the development company.
Based on these unambiguous provisions in the MOA, the trial court correctly
concluded that Dayco’s obligation to secure financing for the project was the sine
qua non of Foch’s performance under the MOA. Specifically, Foch is not required
to transfer the Guardianship Property until Dayco secures full funding for the
project. The record reflects, however, that Dayco failed to perform its funding
obligation, and instead assigned its interests to UHDC. UHDC has also failed to
fund the project pursuant to the MOA. The failure to perform this condition
precedent in the MOA by either Dayco or UHDC precludes recovery for breach of
contract against Foch for his failure to transfer the Guardianship Property.
Although neither UHDC nor Dayco obtained the requisite funding for the
project, UHDC argues that Section 3.02(F) of the MOA provides an alternative to
the funding of the project. Section 3.02(F), provides that Dayco (and thus, UHDC)
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may dispose of its interest by selling the project, and requires Foch to likewise
dispose of his interest in the project. Thus, UHDC contends that it can sell the
project, even if the project has not been fully funded, and it can force Foch to
convey the Guardianship Property to The Suites.
Section 3.02(F), however, only provides for the disposition of the parties’
“membership interests” in The Suites. Section 2.02(B)(4) specifies that Foch is to
receive his membership interest contemporaneous with Dayco’s performance of its
obligation to obtain funding for the project. Because the project has not been
funded, Foch has not obtained a membership interest in The Suites, and thus he has
no membership interest to convey. Based on the plain language in the MOA,
Section 3.02(F) is only triggered after the initial funding of the project occurs.
As to UHDC’s claim for unjust enrichment, the trial court correctly
concluded that any efforts made by UHDC inured to the benefit of The Suites,
which is solely owned by UHDC. Because there is no evidence that Foch has
received any benefit from UHDC’s efforts, the trial court properly granted
summary judgment as to UHDC’s unjust enrichment claim. See Extraordinary
Title Servs., LLC v. Fla. Power & Light Co., 1 So. 3d 400, 404 (Fla. 3d DCA
2009).
CONCLUSION
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Because neither Dayco nor UHDC complied with the MOA’s condition
precedent of securing the requisite funding for the project, Foch was not required
to transfer the Guardianship Property. Accordingly, Foch cannot be liable for
breach of contract based upon his failure to transfer the Guardianship Property.
Additionally, we find that summary judgment was properly entered on UHDC’s
unjust enrichment claim. UHDC’s remaining arguments are without merit.
Affirmed.
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