Legal Document: Strike X LLC Plaintiff vs. Village At Gulfstream Park, LLC , et al Defendant

On August 24, 2021 a Motion for Partial Summary Judgment - GULFSTREAM'S MOTION FOR PARTIAL SUMMARY JUDGMENT FINDING THAT (1) GULFSTREAM IS NOT LIABLE TO PLAINTFF FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL AND/OR SPECIAL DAMAGES AND (2) DISMISSING WITH PREJUDICECOUNT I FOR SPECIFIC PERFORMANCE was filed involving a dispute between Strike C, Llc, Strike X Llc, and Gulfstream Park Racing Association Inc, Stronach, Belinda, Village At Gulfstream Park, Llc, for Contract and Indebtedness in the District Court of Broward County.

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Filing# 152730421 E-Filed 07/05/2022 08:25:23 PM

INTHE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
COMPLEX LITIGATION DIVISION
CASE NO.: CACE-21-16240

STRIKE X, LLC,

Plaintiff.

VS.

THE VILLAGE AT GULFSTREAM
PARK, LLC,

Defendant.
i

GULFSTREAM'S MOTION FOR PARTIAL SUMMARY JUDGMENT
FINDING THAT (1) GULFSTREAM IS NOT LIABLE TO PLAINTIFF FOR INDIRECT,
CONSEQUENTIAL, INCIDENTAL AND/OR SPECIAL DAMAGES AND (2)
DISMISSING WITH PREJUDICE COUNT I FOR SPECIFIC PERFORMANCE

Defendant, The Village at Gulfstream Park, LLC ("Gulfstream" or "Landlord"),pursuant

to Florida Rule of Civil Procedure 1.510, moves for partialsummary judgment againstTenant,

Strike X, LLC or "Tenant"),orderingthat (1) Gulfstream
("Plaintiff' is not liable to Tenant for

any indirect,consequential,incidental,and/or specialdamages includinglost profits(Count II)and

(2)dismissingwith prejudiceCount I for specificperformance.

UNDISPUTED FACTS
Gulfstream owns and operates The Villageat Gulfstream Park, an open-air,
entertainment,

dining,retail,and lifestyle
destination located at 901 S. Federal Highway in Hallandale Beach,

Broward County, Florida ("Village").

Although not at issue in this case, the Plaintiffis a tenant at the Villagepursuant to a Lease

agreement entered into on July 22, 2013 under which Tenant rents retail space at unit 1505 and

operates a bowling alley and entertainment center under the tradename Strike X (the "1505

*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 07/05/2022 08:25:22 PM.****
Lease"). The 1505 Lease is in full force and effect and does not terminate until approximately

March 31,2025. See Defendant's Statement of Material Facts ('SMF")11[2-3.

On August 5,2020, Gulfstream and Tenant entered into a separate lease for space 1700

(the"1700 Lease"). Space 1700 is in a different buildingwithin the Village(the"New Premises").

Id. Declaration of Colin Chapin ("Decl.")at 7 5; see also, Decl.
115 (citing at Ex. 2). The plan was

for Strike X to move into the New Premises, after which the 1505 Lease would terminate. The

1700 Lease term did not commence until the occurrence of the Rent Commencement Date, a

defined term under the 1700 Lease. The Rent Commencement Date was only triggeredupon

satisfaction of various conditions including Gulfstream's approval of the construction plans,

completiono f additional construction to the shell certain build-out o f the interior
o f the building,

2
space, and eventual possession by the Tenant. By design, the 1700 Lease term would not

commence for at least a year after execution ofthe 1700 Lease. Id. atllf6,7,10. In fact,the Rent

Commencement Date never occurred, and Tenant never took occupancy of the New Premises. Id.

at 8,
lili 10.

After executingthe 1700 Lease, Gulfstream undertook a re-designo f a substantial portion

of the Village and surrounding property and determined that the 1700 Lease would materially

interfere with its re-designand development vision. Consequently,Gulfstream advised Tenant by

letter dated April 13, 2021, that it was terminatingthe 1700 Lease and that Gulfstream would not

deliver possessionof the New Premises to Tenant. Id. 9 8 (citingDecl. at f 8; see also, Decl. at

Complex Business Division Procedures on Summary
1
Pursuant to the 17th Judicial Circuit
Judgment Motions, Defendant's SMF and supporting materials are being served
contemporaneously as a separate filing.

2
Under the 1700 Lease, the Rent Commencement Date is defined as "[t]heearlier of: (i)one (1)

year after Tenant receives: (A) a fullyexecuted copy ofthe Lease, (B) approval of Tenant's plans,
specifications and signdrawings for Initial Tenant's Work, (C) the construction permitrequiredto
perform the Initial Tenant's Work (the"Construction Permit"),and (D) possession,as confirmed
in writing,of the entirety of the Premises, includingthe portionin which Landlord is completing
Landlord's Work, unless Landlord and Tenant agree otherwise in writing(collectively, (i)(A)-(D),
the "Outside Date"); or (ii)
the date Tenant opens for business." Id. at 116.

2
Ex. 3). Gulfstream offered to compensate Strike X for any of its documented out-of-pocketcosts
that were incurred in connection with its potential
tenancy in the New Premises.3 Id. at 9 9. Tenant

declined to provide Gulfstream with verifiable documentation of its out-of-pocketexpenses and,

instead,filed suit.

Tenant's existingtenancy at unit 1505 is not affected by Gulfstream's re-designand it is

undisputedthat the 1505 Lease remains in full force and effect.

Tenant's Complaint allegesthree counts: In Count I, Tenant sues for breach of contract

performance. In Count II,Tenant sues for breach of contract/breach ofthe
and seeks only specific

Implied Covenant of Good Faith and Fair Dealing and seeks only money damages including

indirect,consequential, See Compl.
incidental,and specialdamages and lost profits. at f 41. In

Count III, Tenant seeks "actual damages" for breach of Florida's Unfair and Deceptive Trade

Practices Act.

SUMMARY OF ARGUMENT
With respect to Count I for Breach of Contract/Specific
Performance, summary judgment

should be entered in favor of Gulfstream and againstTenant because, as a matter of law, Tenant is

not entitled to specificperformance where, as here, an adequate remedy at law exists. Specifically,

the 1700 Lease expresslyprovides for the award of money damages upon a proven breach by

Gulfstream. Money damages are, by definition,an adequate remedy at law and thereby foreclose

any entitlement to the equitableremedy of specific
performance.

With respect to Count II,Tenant seeks, in addition to its actual damages, "consequential,

incidental,and specialdamages, includinglost profits".See Count II ad damnum clause. But

under Section 26.14(b)of the 1700 Lease, Tenant bargainedaway its rightto seek from Gulfstream

indirect,consequential,incidental,or punitive damages including any liability
for lost profits.

Thus, Gulfstream is -
only legallyobligated and has in fact offered - to compensate Tenant for its

the build-out ofthe New Premises had not yet begun in
3
By the date of the April 13, 2021 letter,
earnest because the concrete block shell building structure that would include the New Premises

requiredsubstantial alterations includingan approximately3000 sq. ft. addition. Id.atf 10
3
direct damages only. SMF at ff 9-12. This limitation was an essential concession agreed to by

Tenant and clearlyformed a material benefit of the bargain for Gulfstream. Thus, summary

judgment must be entered for Gulfstream and againstTenant as to any liability
for indirect,

consequential,incidental,and/or specialdamages includinglost profits.

ARGUMENT
I. Legal Standard

The recentlyamended summary judgment rule in Florida states that "[a] party may move

for summary judgment, identifyingeach claim or defense - or the part of each claim or defense -

on which summary judgment is sought." Fla. R. Civ. P. 1.510(a)."The court shall grant summary

judgment if the movant shows that there is no genuine disputeas to any material fact and the

movant is entitled to judgment as a matter of law." Id. (emphasis added). The summaryjudgment

standard "shall be construed and applied in accordance with the federal summary judgment

standard." Id.4

The Florida Supreme Court has declared that under the new summary judgment rule,"a

moving party that does not bear the burden of persuasionat trial can obtain summary judgment

without disprovingthe nonmovant's case." In re Amend To Fla. R. Civ. P. 1.510, 2021 WL
1684095, at *2. "Such a movant can satisfyits initial burden of production in either of two ways:

If the nonmoving party must prove X to prevailat trial,the moving party at summary judgment
can either produce evidence that X is not so or point out that the nonmoving party lacks the

evidence to prove X." Id. at 3. Another critical pointis that "[m]ere conclusions and unsupported

4
Indeed, "Florida now adhere[s]to the principles which holds
established in the Celotex trilogy,"
that "summary judgment procedureis properlyregardednot as a disfavored proceduralshortcut,
but rather as an integralpart of rules aimed at the just,speedy and inexpensivedetermination of
every action." In re Amends. To Fla. Rule of Civ. Proc. 1.510, No S C20- 1490,202 1 1 6 8409 5,
. WL
at *2 (Fla.Apr. 29,2021) (quotingCelotex Corp. v. Catrett,477 U.S. 317,327 (1986)).
4
factual are legallyinsufficient
allegations to defeat a summary judgment motion. See Mendel v.

Royal Caribbean Cruises, Ltd, No. 10-23398, 2012 WL 2367853, at *4 (S.D.Fla. June 21,2012)
(grantingdefendant's motion for summary judgment where "[pllaintiff's
statements are merely

Accordingly,"[i]nFlorida
unsupported allegations"). it will no longer be plausibleto maintain

that the existence of allY competent evidence creatingan issue of fact,however credible or

stops the inquiryand precludessummary judgment, so long as the
substantial or trivial,
incredible,

doubt'
'slightest is raised." In re Amend To Fla. R. Civ. P. 1.510, 2021 WL 1684095, at *3

(emphasis in original).

II. Florida Law Upholds the Agreement of Contracting Parties to Waive
Consequential, Incidental, and Special Damages.

Florida courts have routinelyheld that partiesmay, by contract, agree to limit their damages

and in such instances,courts will enforce parties'
agreed upon contractual limitations. See Orkin

Exterminating Co., Inc. v. DelGuidice, 790 So. 2d 1158, 1162 (Fla.5th DCA 2001) (Notingthat

"[t]hepartiesby their contract agreed ahead of time to the remedy of repairand retreatment," in

holding that plaintiff' TYR Tactical, LLC
s remedy was limited); v. Protective Prod. Enterprises,

LLCNo. 15-CV-61741,2016 WL 10647315, at *6 (S.D.Fla. Oct. 13,2016) ("Floridacourts allow

and
partiesto limit remedies contractually, if such provisions are made, a court may not award

Amoco Oil Co.
greater compensatory damages.") (citing v. Gomez, 125 F. Supp. 2d 492,511 (S.D.

Fla. marks omitted).
2000)) (internal

Indirect damages such as consequentialdamages and/or lost profitsare, as a matter of law,

not considered direct damages. See Tri-Lady Marine, Ltd. v. Bishop Mechanical Services, LLC,

16-62467-CIV, 2018 WL 10466997 (S.D. Fla. Sept. 20, 2018) (holding that direct damages

where an agreed upon limitation of liability
excluded lost profits expresslyexcluded the recovery

of special, or consequential
indirect, damages-including lost profits.).

5
Here, Tenant expresslyagreed under the 1700 Lease to forego any entitlement to indirect,

consequential,incidental or punitive damages in the event of Gulfstream's alleged default.

Section 26.14 ofthe Lease
Specifically, states:

Section 26.14 - Limitation on Liability.

(b) Notwithstanding anything to the contrary in this Lease, (i)Landlord
shall notbe liable to Tenant for any loss or damage to property which is either
covered by insurance or which Tenant is requiredto insure under this Lease, and
of Landlord to Tenant under this Lease shall be limited to direct
(ii)any liability
damages and shall not include indirect, consequential,incidental, or punitive
damages, including any liability to Tenant for lost profitsor interruptionof
business. Tenant shall look to its property damage or business interruption
insurance policies,and not to Landlord, its agents or employees for any loss
of its business,except
incurred as a result of damage to its property or interruption
as otherwise expresslyprovided in this Lease.

(Emphasis Added.) SMF 7 11; Compl. at Ex. A (§ 26.14(b)).(emphasis added).5
Limitations on recovery of consequential,
incidental,and specialdamages fall under the

umbrella of limitations that Florida courts recognizeas reasonable. See Gen. Tool Indus., Inc. v.

Premier Mach., Inc., 790 So. 2d 449 (Fla. 3d DCA 2001) (granting defendants' motion for

summaryjudgment and holdingthat pursuant to the terms and conditions ofthe parties'
agreement,

that incidental damages, consequentialdamages, or lost profitswere barred);Doctor Diabetic

Supply, Inc. v. POAP Corp., 41 So. 3d 916 (Fla.3d DCA 2010) (affirmingsummary judgment

contract contained a provisionprecludingrecovery of consequentialdamages);TKR
where parties'

Tactical, LLC No. 15-CV-61741,2016 WL 10647315, at *6-7 (holdingthat parties'agreement

barred consequentialdamages, includinglost profits); MDS (Canada), Inc. v. Rad Source Techs.,

Inc., 822 F. Supp. 2d 1263, 1317 (S.D.Fla. 2011) (same).

5
Section 9.1(b) of the 1700 Lease, which addresses tenant hold over, is not applicablein this
litigation.
6
In its ad damnum clause to Count II,Tenant's Complaint seeks to hold Gulfstream liable

..
for incidental and specialdamages, includinglost profits".But Tenant agreed to
"consequential,

forego any such entitlement. Thus, judgement should be entered againstTenant and in favor of

Gulfstream with respect to any claim for indirect,consequential,
incidental,or punitivedamages,

to Tenant for
includingany liability lost of business.
profitsor interruption

III. The Dutv of Good Faith and Fair Dealing Derives from the Contract and is

Subiect to the Same Agreed Upon Damage Limitations.

that Gulfstream breached the implied covenant of good faith and fair
Tenant's allegation

dealing, a claim which Gulfstream vehemently denies, does not change the fact that Tenant

bargainedfor the rightto seek only direct damages. A party'sduty of good faith and fair dealing
to that party's performance under the contract.
speaks directly See Maxwell v. First United Bank,

782 So. 2d 931, 934-935 (Fla.4th DCA 2001). Because good faith and fair dealingis an obligation

impliedby law and applicableto every contract, the damages that may proximatelyflow from a

breach of that obligationis correspondinglygoverned by the same contract.

IV. A Partv Mav Not Obtain Specific Performance Where an Adequate Remedv
at Law Exists.

In Count I, Tenant sues for breach of contract and seeks as its only remedy, specific

performance. Specificperformance is a form of injunction-the difference being that an

injunctionorders a wrongdoer not to do something, whereas specificperformance orders a

wrongdoer to do something. Thus, the Tenant's burden to prove an entitlement to specific

perfoimance is materiallysimilar to the elements of proof for an injunction.To defeat summary

judgment, Tenant must establish by plausiblesummary judgment evidence that: "(1)the plaintiff

is clearlyentitled to this remedy (2)there is no adequate remedy at law; and (3)justicemust require

7
it." Sardinas v. P.A.,No. 1:20-ev-22987-BLOOM/Louis, 2020 WL
Miami VeterinarySpecialists,

7241364, at *19 (S.D.Fla. Dec. 8,2020).

1. Tenant Admits to Having an Adequate Remedy at Law.

specificperformance cannot be awarded where an adequate remedy
Like an injunction, at

law exists. the Court
Stated differently, may not grant specificperformance unless the injuryis

An irreparable
irreparable. injurymeans "it cannot be undone through monetary remedies." CCI-

KCE, LLC v. All Gas, LLC, 3 :21 -cv-983-MMH-JBT, 2021 WL 544895 5 (M.D. Fla. Nov. 22,2021 )
performance as a contract remedy
("specific is available 'onlywhen there is no adequate remedy

at Linkous
law."'); v. Linkous, 941 So. 2d 530, 530 (Fla.1st DCA 2006) ("We reverse only the

trial court's grant of specific
performance.Specificperformance is an appropriateremedy only

when there is no adequate remedy at law.");Vagabond Travel Tours v. Universal, 440 So. 2d 482,

483 (Fla.2d DCA 1983) ("The trial court entered the order grantingsummary judgment on the

followinggrounds. . .
Vagabond had an adequate remedy at law via an action for compensatory

damages. . . because we find that Vagabond does have an adequate remedy at law, we affirm the

final summary judgment denying specificperformance.");Miracle Marketplace LLC, 2009 WL
10669190, at *fn 17 (S.D.Fla. 2009) ("Specific
performance is an appropriateremedy only when

there is no adequate remedy at law. . . because Miracle may have an adequate remedy at law for

damages through a cause of action for breach of contract, specific
performance is not the only

appropriateremedy in this case.") As such, justicedoes not requirespecificperformance because

Tenant also seeks a monetary remedy.

Here, the Tenant's own and
admissions establish that the injuryallegedis not irreparable

that money damages provide an adequate remedy at law. In its answer to InterrogatoryNo. 2

served on December 7, 2021, Tenant states under oath that it seeks,among other things,"... actual

8
incidental and specialdamages...". And,
and compensatory damages as well as consequential,

after being compelled by Order ofthe Court on April 20,20226 to provide a more specificanswer

as to the damages suffered,the Tenant testified:

Response: As of the date of this Response, Plaintiff has not identified each and every
expense or other claim of loss which it seeks as damages in this Lawsuit. As raised in its
Complaint, in addition to specificperformance, Plaintiff seeks actual and compensatory
damages, as well as consequential, incidental and specialdamages, includinglost profits,

arising from Gulfstream's intentional breach and repudiationof the 1700 Lease, along
with attorneys'fees, costs and such other relief as the court deems just and fair. The
costs incurred by Plaintiff include, but are not limited to, architectural expenses of

approximately $40,000, furniture expenses of approximately $40,000, attorneys'fees in
excess of $100,000 which continue to accrue, design-related expenses, and employee
compensation expenses. Furthermore, Plaintiff intends to rely on expert testimony as to
the amount of damages suffered by Plaintiff, which expert will be disclosed within the
time required under the Florida Rules of Civil Procedure and the Court's Pre-Trial
Order. Finally,Plaintiff has agreed to produce certain financial statements and other
documents that contain information responsiveto this request. Investigation continues.

InterrogatoryAnswer No. 2.

The Tenant's of its
response proves that the quantification
verified interrogatory damages

is neither speculativenor impossibleto ascertain. In fact,it claims to have quantifiedits direct

damages with certainty.Tenant's own interrogatoryanswers are a clear admission as to the

existence of an adequate remedy at law. As argued supra, the fact that Tenant agreed to accept

direct damages as a complete remedy in lieu of indirect or consequential
damages does nothingto

alter the fact that money damages are an adequate remedy. An adequate remedy merely speaks to

the availability
ofmoney damages as a remedy, not whether the amount of such damages may be

subjectively See Seaescape v.
satisfying. Maximum Mktg. Exposure, 568 So. 2d 952,954 (Fla.3d

DCA 1990) (holding a remedy at law is adequate when "damages are calculable");
Samak v.

6
The court entered on the same date two different orders, one submitted by Tenant and one
submitted by Defendant. And while the two orders differ slightlyin content, the language
contained in each of the orders required the Tenant to amend its interrogatoryanswer to specify
its actual damages.

9
H/'arden, FCC Coleman-Medium, 766 F.3d 1271, 1285 (llthCir. 2014) ("Likewise,we do not call

a remedy at law "inadequate"solelybecause a defendant is unlikelyto win an award of money

damages.").

2. Court's Disfavor Specific Performance as a Remedy in
Commercial Lease Cases.

Courts in Florida overwhelmingly decline to exercise specificperformance to enforce the

terms of a commercial lease even in cases where the award ofmoney damages may be an imperfect

remedy. See Miracle Marketplace LLC, 1009 WL 10669190, at *7 ("thegeneralrule under Florida
law is that specificperformance is See
not permitted as a remedy in lease enforcement cases.");

also Craven v.
TRG-Boynton Beach, Ltd, 925 So. 2d 476, 481 (Fla.4th DCA 2006) ("Generally,

Florida, like the vast majority of other jurisdictions,
does not permit specificperfoimance of a

lease,even in ordinarycircumstances,because the court would be forced to undertake an excessive

supervisoryresponsibility.").

The policyunderlyingthe aversion of courts to enforce specificperfoimance in commercial

lease cases, except in the most unusual of circumstances,is grounded in the wisdom that the court

ought not substitute its own business judgment for that of the landlord and tenant in the day-to-

dayperformance ofthe lease. SeeMiracle Marketplace LLC 2009 WL 10669190, at *7 ("As Ulta
correctly performance under the
pointsout, grantingspecific facts at hand would requirethe Court

to allow Miracle to complete the Shell of the buildingand to requireUlta to complete its work

with respect to the interior of the premises,to then compel Ulta to open its store for one day.");

performance would requirethe
see also Craven, 925 So. 2d at 481 ("here,a decree of specific

court to oversee the demolition of eleven new townhomes. . . and the reconstruction ofthe property

plan.").In Mayor 's Jewelers,the Fourth District Court of Appeals held
accordingto the original

that performance should be denied simply "because
specific it would requiresupervisionby the

10
Court" and because Courts are not "in the business ofmanaging a shopping center." See Mayor 's

Jewelers, Inc. v. State of CaliforniaPublic Employees' Retirement System, 6%5 So. ld 904,905

(Fla.4th DCA 1996). This decision was reached without the Fourth DCA even decidingwhether
there was an adequateremedy at law. Id.

As the Court well knows, the 1700 Lease burdens both the Landlord and Tenant with many

includingcompliance with the conditions of the Lease such as the
day-to-dayresponsibilities

review and approval of the plans,oversightof construction compliance,considerations regarding

design confonnity with other tenants, oversightof the build-out,cost accountancy, justto name a

few. In short,courts are wary to order specificperfoimance even in cases where an adequate

remedy at law might not exist. But where an adequate remedy at law does exist,the law is clear

that specificperformance is improper. See generally CCI-KCE, LLC, 2021 WL 5448955, at *3
("KCE makes no attempt to show that the Missing Truck is of a unique character or otherwise

explain why monetary damages are insufficient as a remedy here."). In Vagabond, the plaintiff

initiated an action seeking specificperfoimance of a contract to rent 150 hotel rooms during the

1984 Super Bowl. Vagabond Travel Tours, 440 So. 2d at 483. The Court held that the hotel rooms

were not so unique so as to entitle the to specificperformance given that there was an
plaintiff

adequate remedy at law. Id. There is nothingunique about the
similarly New Premises such that

an adequateremedy at law would be unavailable. Tenant admits this by admittingthat it is entitled

to monetary damages.

Against a tsunami of adverse precedent,the outlier is Fla. Panthers Hockey Club, Ltd. By

& Through Fla. Panthers Hockey Club, Inc. v. Miami Sports & Exhibition Auth.,939 F. Supp.

855,860 (S.D.Fla. 19961 alfd sub nom. Fla. Panthers v. Cityof Miami, 116 F.3d 1492 (llth Cir.

1997). In Florida Panthers, the Miami Sports and Exhibition Authority and the City of Miami

11
evicted the Florida Panthers Professional Hockey team from playing at the Miami Arena after a

disputearose as to the financial terms ofthe Panthers' license agreement (which included its right

to play games at the Arena). The Panthers sought a preliminaryinjunctionto prevent its

In this fact-driven case involvingan iconic South Florida professional
dispossession. sports team,

from the instant case, the court found that "the
the court grantedthe injunction.Distinguishable

Panthers' existence and success rests, in largepart, on the interest and loyaltyof the fans....

The potentialharm to the Panthers is incalculable and extends beyond the financial injury.If

the Panthers cannot play in the Miami Arena, it may lose home game advantage and may lose

goodwill among its fans. Further, the Panthers' relationshipwith the NHL may be adversely

affected". Id. In balancingthe public interest,
the court made note o f the role o f pro fessional

sports to serve the public interest and provide economic benefits to the public at large.

Clearly,the court was moved not by the financial injury that might be suffered (and

could be measured), but by incalculable damage to intangibles that apply uniquely to a

professionalsports team in relation to the community at large. Such is not the case before the

Court. The Tenant here admits its damages are calculable.

3. A Contract Provision Is Not Dispositive of the Issue of
Irreparable Harm.

The 1700 Lease states that "[tlenantis permittedto seek specific
perfoimance,equitable

monetary damages and declaratoryrelief concerning [al default." 1700 Lease att 23.5.
relief, A

plainreading of the provisionmakes clear that,as to any specificmethod of relief upon default,

the 1700 Lease language is permissive,not mandatory. Indeed, the remedies, if taken

cumulatively,would run counter to well established Florida jurisprudence. For example, the

simultaneous deployment of specificperformance togetherwith an award of money damages to

12
remedy the same default would result in a double recovery. Thus, while the 1700 Lease does not

remedy, it does not
foreclose any particular mandate a particular
remedy either.

of the
In Florida,regardingspecificperformance, a contract provisionis not dispositive

issue of irreparable
harm, nor does the language itself create a presumption of irreparable
haim,

nor is contractual language binding on the Court. Even where a contract or agreement purports to

of a party's
perfoimance as a remedy, such contractual language is not dispositive
providespecific

perfoimance where there
rightto obtain specific is an adequate remedy at law. See Dragon Jade

International, Ltd. v. Ultroid LLC, 2018 WL 1833160, at *1-4 (M.D. Fla. 2018) (holding

injunctiverelief denied where contract specifically
contemplatesit as a remedy because "such a

haim, does not in and ofitself create
ofthe issue ofirreparable
contract provisionis not dispositive

a presumption of irreparable
harm, nor is it binding on the Court.");Sentinel Cap. Orlando, LLC

v. Centennial Bank,No. 612-cv-785-ORL-40GJK, 2014 WL 12619229, at *1 (M.D. Fla. Oct. 29,

2014) (holding contractual provision providing for specificperformance as a remedy was

insufficient for the Court to grant specificperformance where there was an adequate remedy at

law.);Anago Franchising Inc. v. CHAU, Inc.,No. 09-60713-CIV-ALTONAG, 2009 WL 5176548,

at *11 (S.D. Fla. Dec. 21, 2009) (holdingthat a contract provisionproviding for injunctiverelief

"is of the issue of irreparable
not alone dispositive harm. . . thus notwithstandingthe existence o f

the Court 'must engage in the usual case-by-case
[the contract provisionallowing for injunction],

analysis"'to determine if equitablerelief can be granted because there is no adequate remedy at

law).

In Dragon Jade, which is instructive to this relied on the terms of the
Court, the plaintiff

agreement in seeking to obtain specificperformance. The District Court acknowledged that while

the agreement did contemplate an equitableremedy-such agreement in a contract is not binding

13
on the Court because injunctions remedy never awarded as ofright."Dragon
are "an extraordinary

Jade International, Ltd, 2018 WL 1833160, at *4. The analysisas to whether specific
performance

should be granted is whether an injury "cannot be undone through monetary remedies", not

whether the use of magic words such as injunction, performance are
equitablerelief,or specific

included within a contract. Id. Ultimately, "contractual provisions regarding entitlement to

injunctiverelief are accorded little to no weight." Id. ("The partiesto a contract cannot, by

including certain language in that contract, create a rightto injunctiverelief where it would

otherwise be inappropriate.")
(citingFiremen 's Ins. Co. ofNewark New Jersey v. Keating, 753 F.

Supp. 1146,1154 (S.D.N.Y. 1990)). The mere reference to the words "specificperformance as

remedy in the 1700 Lease should be afforded no weight because there
a potential is an adequate

remedy at law and "the Court has an obligationto ensure that each ofthe elements are met" before

grantingsuch equitablerelief. Id.

Similarly,in Sentinel, the plaintiffargued that the agreement between the parties

provided for specificperformance as a remedy and accordinglyasked the Court to
specifically

performance. However, the Middle District of Florida held: "it
enforce specific is clear that the

partiescannot compel a Court to exercise its equitablepowers when damages provide an adequate

remedy at law." Sentinel Cap. Orlando, LLC, 2014 WL 12619229, at *1.7 Accordingly, the

performance in the 1700 Lease is not dispositive
reference to specific of Tenant's allegedrightto

7
The Middle District ofFlorida appliedGeorgia law. However, this case is still instructive because
the Georgia law cited mirrors the law of specificperformance in Florida. In reachingits holding,
the Middle District of Florida relied on the following Georgia law: "specificperformance is
..
available under Georgia law in cases where the recoverable damages are not an adequateremedy'
and that "specificperformance is an extraordinary remedy which should only be grantedwhen the
injuredparty does not have an adequate remedy at law." Id. at 1. Florida law is the same on this
issue.

14
specificperformance. Rather, because there is an adequate remedy at law, specificperformance

is unavailable to the tenant.

In addition, specificperformance here is "impracticaland would result in a harsh and

inequitableresult" as it would requireGulfstream move forward with a lease in a location that

conflicts with its re-design and development plans. And, forced tenancy through specific

performance would requirethe court to substitute its own values and business judgment for those

o f the Landlord and Tenant. See Miracle Marketplace LLC, 2009 WL 10669190, at *7.
CONCLUSION

Wherefore, Defendant, The Village at Gulfstream Park, respectfully
requests that the

Court enter Summary Final Judgement againstPlaintiff,
Strike X, LLC and (1)in Count II,order

that Gulfstream is not liable to Strike X, LLC for any one or more of indirect,consequential,

(2) dismiss Count
and/or specialdamages includinglost profits;
incidental, I of the Complaint for

specificperformance with Prejudice;(3) award Gulfstream its reasonable attorneys'fees and costs;

and (4) award such other relief as this Court deems equitableand just.

Respectfullysubmitted,

GREENBERG TRAURIG, P.A.
nd
333 S.E. 2I Avenue, Suite 4400
Miami, Florida 33131
Telephone:(305) 579-0519
Facsimile: (305) 579-0717

By: s/Michael N. Kreitzer
Michael N. Kreitzer, Esq.
Florida Bar No. 705561

kreitzerm@gtlaw.com
belloy@gtlaw.com
flservice@gtlaw.com
Jennifer J. Junger, Esq.
Florida Bar No. 125853

jungerj@gtlaw.com
fernandezfe@gtlaw.com
Jordanna Ishmael, Esq.
15
Florida Bar No. 1011647

ishmaelj@gtlaw.com
abrahamd@gtlaw.com
Attorneys for Village at Gulfstream Park,
LLC

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoingwas electronically

filed with the Clerk of the Court using the Florida Courts E-FilingPortal. I also that the
certify

foregoingdocument is being served on July 5,2022, by e-mail generatedby the E-Portal system

upon.

ZARCO EINHORN SALKOWSKI & BRITO, P.A.
One Biscayne Tower
2 South Biscayne Boulevard, 34th Floor
Miami, Florida 33131
Telephone: (305) 374-5418
Facsimile: (305) 374-5428

Robert Zarco
Florida Bar No. 502138

rzarco@zarcolaw.com

Robert F. Salkowski
Florida Bar No. 903124

rsalkowski@zarcolaw.com
acoro@zarcolaw.com

Mary Nikezic
Florida Bar No. 92928

mnikezic@zarcolaw.com
eservice@zarcolaw.com

Colby Conforti
Florida Bar No. 92928

cconforti@zarcolaw.com
eservice@zarcolaw.com
By: s/Michael N. Kreitzer

Case Info

Judge

Tuter, Jack Track Judge’s New Case

Case No.

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Document Filed Date

July 05, 2022

Case Filing Date

August 24, 2021

County

Parties

Conforti, Colby Grossman Attorney for the Plaintiff
Gulfstream Park Racing Association Inc Defendant
Kreitzer, Michael N Attorney for the Defendant
Strike C, LLC Plaintiff
Strike X LLC Plaintiff
Stronach, Belinda Defendant
Village At Gulfstream Park, LLC Defendant
Zarco, Roberto Attorney for the Plaintiff
Robert Salkowski Attorney
Merema Nikezic Attorney
Robert Zarco Attorney
Jennifer Junger Attorneys for Defendants
Jordanna Ishmael Attorneys for Defendants
Diana Albite Attorney
Jude Cooper Attorney
Jon Polenberg Attorney
Gavin Banta Attorney
Steven Berman Attorney

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Document for Strike X LLC Plaintiff vs. Village At Gulfstream Park, LLC , et al Defendant

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