Motion,Ex Parte: DIMAURO, JOSEPH V MARTIN, MICHAEL W

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                                Filing # 140314329 E-Filed 12/14/2021 10:02:11 AM

IN THE CIRCUIT COURT OF THE 15TH
JUDICIAL CIRCUIT, IN AND FOR PALM
BEACH COUNTY, FLORIDA

CASE NO. 50 2020 CA 008260 XXXX MB AA
JUDGE GREGORY M. KEYSER

JOSEPH S. DIMAURO, derivatively and as a
Member of 784 LAKE ROGERS, LLC, a Florida

limited liability company, and
Plaintiff,
vs.

MICHAEL W. MARTIN and CLAUDIA A. KIWI,

Defendants.
/

PLAINTIFF’S MOTION FOR REHEARING

Pursuant to Fla. R. Civ. P. 1.530 and other applicable Florida law, Plaintiff Joseph
DiMauro, derivatively and as a Member of 784 Lake Rogers, LLC (Mr. DiMauro), files this
Motion for Rehearing as it relates to the Final Judgment entered by Judge Keyser, after a non-jury
trial, on November 29, 2021. In support of this Motion, and as set forth in more detail below,
Judge Keyser respectfully erred in his conclusions of law as it relates to the purported need for
“mutuality of remedies” in order for a moving party to obtain specific performance of a contract.
As such, a rehearing is warranted.

Background
1. On May 19, 2021, a non-jury trial was held on the underlying matter.
2. The core issue in the case was whether Mr. DiMauro was entitled to specific

performance as a result of the breach of contract (i.e., the Operating Agreement) by the Defendants.

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Case No. 50 2020 CA 008260 XXXX MB AA

3. Both parties submitted proposed final judgments to Judge Keyser. Copies of the
respective parties proposed final judgments are attached hereto as Exhibit “A” and “B.”

4. On November 29, 2021 (approximately six months after the non-jury trial was held
and the parties submitted their proposed final judgments), Judge Keyser entered a Final Judgment.
A copy of the Final Judgment is attached hereto as Exhibit “C.”

5. The Final Judgment, in large part, incorporated verbatim the proposed final
Judgment submitted by Defendants.

6. Judge Keyser’s Final Judgment incorrectly relied upon the proposed final judgment
submitted by Defendants insofar as Judge Keyser incorrectly concluded that: (a) Mr. DiMauro was
not entitled to specific performance as a remedy as a result of a lack of “mutuality of remedies;”
(b) Mr. DiMauro had an adequate remedy at law available to him; and (c) the Operating Agreement
was invalid for lack / want of consideration.

Legal Standard for Rehearing

The grounds for granting a rehearing pursuant to Rule 1.530 are broad. Balmoral
Condominium Ass’n v. Grimaldi, 107 So. 3d 1149, 1151 (Fla. 3d DCA 2013). The purpose of a
trial court’s broad authority to grant a rehearing under Rule 1.530 is to give a trial the opportunity
to consider issues that it may have overlooked or failed to consider, and correct any such error.

Muth v. AIU Ins. Co., 982 So. 2d 749, 752 (Fla. 4th DCA 2008). A motion for rehearing pursuant

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1.530(b).Joseph S. DiMauro v. Michael W. Martin, et al.
Case No. 50 2020 CA 008260 XXXX MB AA

Argument

The trial court respectfully overlooked, misapprehended, and/or failed to consider three
issues resulting in error: (1) whether there is a need for “mutuality of remedies” in order for a
moving party to be entitled to specific performance; (2) whether Mr. DiMauro had an adequate
remedy at law available to him, which would preclude specific performance; and (3) whether the
Operating Agreement was invalid for lack / want of consideration.
L Florida Law Does Not Require Each Party to Have the Same Remedy

The trial court, relying on the proposed final judgment submitted by Defendants, cites to a
string of cases purportedly standing for the proposition of law that for a party to obtain specific
performance, the non-moving party must have the exact same remedy available to it. Final
Judgment, at p. 7-9. Specifically, the trial court adopted from the Defendants’ proposed final
judgement, precisely, the following conciusion of iaw:

Each of the aforementioned cases hold, insofar as mutuality of remedies is

concerned, that there must exist a recognized mutuality of remedies in equity

between the parties to this lawsuit which could constitute a basis for awarding

specific performance in this case at bar to [Mr. DiMauro].
Final Judgment, ai p. 8. The irial court's conciusion, adopted verbaitm irom the Detenaanis’
proposed final judgment, misapprehends, overlooks and/or fails to consider well-established
Florida law.

For starters, it is important to note that there is a difference between mutuality of obligation
and mutuality of remedy. “Obligation pertains to the consideration while remedy pertains to the
means of enforcement.” Redington Grand, LLP y. Level 10 Properties, LLC, 22 So. 3d 604, 608

(Fla. 2d DCA 2009) quoting Bacon v. Karr, 139 So. 2d 166, 169 (Fla. 2d DCA 1962). As the

Rodinotan Grand court evnlained “Im Tutnal gblication i is eccential hnt the meane af enforcement
FCGHQHCTE CinariGe COULL CAPAGUACG,  [LOLpUUUEL COL GUSOTE 0 COUUIREL, CUE UNO LRCaIKG Od COOL CULRCEE

may differ without necessarily affecting the reciprocal obligations of the parties.” Jd. StatedJoseph S. DiMauro v. Michael W. Martin, et al.
Case No. 50 2020 CA 008260 XXXX MB AA

different, and as the Redington Grand court stated, the parties’ remedies under a contract may
differ, and “an absence of mutuality of remedies will not destroy an agreement’s validity.” Jd.
quoting Blue Paper, Inc. v. Provost, 914 So. 2d 1048, 1052 (Fla. 4th DCA 2005); see also Bossert
vy. Palm Beach County Comprehensive Community Mental Health Center, Inc., 404 So. 2d 1138,
1139 (Fla. 4th DCA 1981) (“The legal principle requiring mutuality in contracts does not require
that in every case each party have the same remedy.”). As succinctly put by the Fourth District
Court of Appeal in Blue Paper, Inc., “an absence of mutuality of remedies will not destroy an
agreement’s validity,” and where the contract provides a party with an enforceable remedy, there
is no absence of mutuality of remedies rendering specific performance inappropriate. Blue Paper,
Inc., at 1052.

The case of Parker v. Weiss, 404 So. 2d 820 (Fla. Ist DCA 1981) helps illustrate this point
further. In Parker, the parties entered into an agreement where the seller of reai property agreed
to convey the real property to the buyer in exchange for the buyer to satisfy the property’s mortgage
in the future. Prior to the buyer satisfying the mortgage, but prior to the conveyance of the
property, the seller’s found other satisfactory financial backing which would allow them to satisfy
the mortgage and stay in their home. The buyer brought suit for specific performance, seeking an
order requiring the seller to convey the property. The Parker court, affirming the trial court’s order
of specific performance, agreed that the necessary mutuality existed because of the evidence

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mortgage.
The trial court, relying verbatim on the Defendants’ proposed final judgment and the string

of cases cited therein, misapprehended the law and incorrectly held that Mr. DiMauro was not

entitled to specific performance merely because the precise type of specific performance relief wasJoseph S. DiMauro v. Michael W. Martin, et al.
Case No. 50 2020 CA 008260 XXXX MB AA

not available to the Defendants. That is simply not what Florida law requires in order for a party
to be entitled to specific performance.
II. Mr. DiMauro Did Not Have an Adequate Remedy at Law Available to Him

The trial court found that Mr. DiMauro would “be able to seek his damages at law to
adequately compensated [him] for money spent, not speculative lost profit, should there be a
breach by Defendants of an enforceable contract.” Final Judgment, at p. 9. The trial court’s
analysis misses the mark because the breach complained of here relates to the Defendants’ initial
breach of failing to convey the property to Mr. DiMauro. Without the initial conveyance of the
property, there can be no further breach by the Defendants and Mr. DiMauro would not be able to
spend any money developing the property; thus, would have no adequate remedy at law available
to him.

The trial court overlooked the intent of the parties in entering the contract; that is, for the
Defendants to convey the property to the Company, for Mr. DiMauro to cover the costs associated
with developing the property, and for the parties/Company to split the proceeds after the sale of
the developed property. Towards that end, it would be an impossibility to say that Mr. DiMauro
had an adequate remedy at law available to him if the Defendants refuse to convey the property in
the first place. In fact, Mr. DiMauro, under such circumstances, has absolutely no remedy at law

available to him because it would be impossible for him to develop the property under the

 

the property to the buyer. In such situations, courts consistently find that a lack of adequate remedy

at law exists as it relates to the buyer’s ability to seek specific performance. Parker v. Weiss, 404

So. 2d 820, 820-21 (Fla. Ist DCA 1981); Boston v. Kessler, 434 So. 2d 336, 336 (Fla. 3d DCA

1983).Joseph S. DiMauro v. Michael W. Martin, et al.
Case No. 50 2020 CA 008260 XXXX MB AA

If. Contract Did Not Fail for Lack / Want of Consideration

The trial court, relying on a case from 1885 cited to by Defendants in their proposed final
judgment, misapprehended the law on consideration in holding that: “[t]here is a lack of
consideration and want of consideration in the Operating Agreement...” Final Judgment, at p. 9.
The trial court focused on “[t]he omission of Capital Contribution by [Mr. DiMauro]” in support
of its ultimate determination. In doing so, the trial court misapprehended and/or overlooked
applicable Florida law and evidence presented at trial.

The terms of the Operating Agreement were in writing, straightforward and therefore
uncontested at trial. The purpose of the Company was to acquire the property, which was owned
by the Defendants, and then develop the property through a non-party developer by razing and
building back a new custom single-family residence, which the Company would then seek to sell
for profit. The distribution of the profits was based upon each party’s contributions, with the
property assessed at the agreed value of $1.25 Million. Construction was to be performed by a
specific third-party developer (JSD Builders, Inc.), on cost plus terms, and with a preliminary
estimate of $1,675,200, plus a 15% markup as the developer’s fee ($251,280.00). This preliminary
budget was presented to the Defendants prior to signing the Operating Agreement. Exs. 1, 15, and
16. Simply put, Defendants’ contribution was the property, while Mr. DiMauro’s contribution was

the costs associated with the construction and development of the property (estimated to be

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It is well settled law in Florida that “[a] promise, no matter how slight, qualifies as
consideration if the promisor agrees to do something that he or she is not already obligated to do.”

Cintas Corp. No. 2 v. Schwalier, 901 So. 2d 307, 309 (Fla. Ist DCA 2005). Moreover, as the case

here, where one party promises to make a future payment, the same is adequate consideration. See,Joseph S. DiMauro v. Michael W. Martin, et al.
Case No. 50 2020 CA 008260 XXXX MB AA

e.g., Parker, 820 So. 2d at 820 (holding that a purchaser’s promise to pay off an existing mortgage
in the future was valid consideration for a real estate contract); see also Ferguson v. Carnes, 125
So. 3d 841, 842 (Fla. 4th DCA 2013) (explaining that an enforceable bilateral contract exists where
both sides promise to do something in the future; thus, the agreement contains valid consideration).
Here, Mr. DiMauro was under no legal obligation to pay for the costs associated with the
construction and development of the property; thus, the same is adequate consideration pursuant
to well-established Florida law. Moreover, by Mr. DiMauro promising to do something in the
future, valid consideration existed on both sides of the Operating Agreement.

To the extent the trial court relied on McCranie v. Cason, 79 Fla. 857 (1920), which was
cited to by Defendants in their proposed final judgment, the trial court misapplied its application
here. In McCranie, the court was analyzing the issue of whether a plaintiff/lender’s failure to
payoff an existing mortgage ona date certain resulted in a jack of consideration by the plaintiff to
bring a claim on a note. /d., at 859-861. The court ultimately concluding that the party’s failure
to perform within the time frame it was required to perform results in a failure of consideration or
want of consideration. Jd. That is simply not the case here because Mr. DiMauro was never even
given the opportunity to tender his agreed upon consideration as a result of Defendants refusal to
honor the terms of the Operating Agreement by contributing the property to the Company.

Conclusion

The Wid COUT, in endering ihe Pinal Judginent, Telied almast Exclusively on Ue Proposed
final judgment submitted by Defendants. And, in doing so, respectfully overlooked,
misapprehended, and/or failed to consider the following three core issues resulting in error:

(1) whether the non-moving party must have the same exact remedy available to it in order for the

moving party to be entitled to specific performance; (2) whether Mr. DiMauro had an adequateJoseph S. DiMauro v. Michael W. Martin, et al.
Case No. 50 2020 CA 008260 XXXX MB AA

remedy at law available to him, which would preclude specific performance; and (3) whether the

Operating Agreement was invalid for lack/want of consideration.
WHEREFORE, Mr. DiMauro respectfully requests that this Court enter an order requiring
a rehearing pursuant to Rule 1.530, and for all other and further relief as this Court deems just and
proper.
Respectfully submitted,

PADULA BENNARDO LEVINE, LLP
Attorneys for Plaintiff
3837 NW Boca Raton Blvd., Suite 200

Boca Raton, Florida 33431
Telephone No. 561.544.8900
Facsimile No. 561.544.8999

DATED: December 14, 2021

By: __/s/ Stephen J. Padula
STEPHEN J. PADULA

Florida Bar No. 182362
Email: SJP@PBL-Law.com
JOSHUA S. WIDLANSKY

Florida Bar No. 45197
Email: JSW@PBL-Law.com

CER LIFICALE UF SEKVICK
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by the

Florida Courts E-Filing Portal via Email akoski@koskilaw.com; afrage@koskilaw.com to:

Arthur C. Koski, Esquire, Law Office of Arthur C. Koski, P.A., 101 North Federal Highway,

Suite 602, Boca Raton, Florida 33432, on this 14th day of December, 2021.

By: __/s/ Stephen J. Padula
STEPHEN J. PADULAIN THE CIRCUIT COURT OF THE 15TH
JUDICIAL CIRCUIT, IN AND FOR PALM BEACH
COUNTY, FLORIDA

CASE NO. 50 2020 CA 008260 XXXX MB AA
JUDGE GREGORY M. KEYSER

JOSEPH S. DIMAURO, derivatively and as a Member
of 784 LAKE ROGERS, LLC, a Florida limited

liability company, and
Plaintiff,
vs.

MICHAEL W. MARTIN and CLAUDIA A. KIWI,

Defendants.
a

FINAL JUDGMENT

This case came before the Court for a non-jury trial on May 19-20, 2021. All parties
appeared with counsel. After hearing testimony from the witnesses, reviewing all documents
admitted into evidence, and hearing argument of counsel, this Court makes the following findings
of fact and conclusions of law.

Findings of Fact
Background

This is an action in which the Plaintiff, Joseph DiMauro, is seeking specific performance for
the Defendants’ alleged failure to abide by the Operating Agreement of a company they formed
known as 784 Lake Rogers, LLC (the “Company”’). There is no dispute that all parties signed the
Operating Agreement and the First Amendment thereto based upon the evidence presented at trial,

including the Defendants’ own admissions. However, both Defendants tendered responses to

rannant far adenincin wher in tha Ainnntare ahace that naithar Af tham aiened aithar the Qnaratin
Teuest Lor aaMissions Carly in Wie GiscOVery puase what Heiuey OF Wie Signed Cither ie OperatingDiMauro vy. Martin, et al.
Case No. 50 2020 CA 008260 XXXX MB AA

Agreement or the First Amendment thereto (Ex 31-32, 34-35, at ff 2,5).

Per the Operating Agreement, the purpose of the Company was to acquire the real property
located at 784 NE 35th Street in Boca Raton (the “Property’’), which was owned by the Defendants
(who are husband and wife), and then develop the Property through a non-party builder (JSD
Builders, Inc. 4) by razing and building back a new custom single-family residence, which the
Company would then seek to sell for a profit. The distribution of the profits was based upon each
party’s contributions. Specifically, the Defendants were contributing the Property, which the Parties
agreed was valued at $1.25 Million. The total cost of construction, which Plaintiff was obligated to
solely bear, was the Plaintiff’s contribution. The construction was to be performed by JSD Builders,
Inc.. The construction contract required JSD Builders, Inc. to build the new home for its costs
(which had a preliminary estimate of $1,675,200.00), plus a 15% markup as the contractor’s fee
(251,280.00) (Exs 1, 16). The preliminary budget was presenied to Defendants prior io the signing
of the Operating Agreement (Ex 15, 16, Day 1 at 24:22-27:19)

The Parties signed the Operating Agreement memorializing this agreement on January 31,
2020 (Ex 1). On March 9, 2020, the Governor for the State of Florida issued Executive Order 20-
52 declaring a state of emergency for the entire State of Florida as a result of COVID-19 (Ex 7). On
April 3, 2020, the Governor for the State of Florida issued Executive Order 20-91 and Executive
Order 20-92 directing all persons in Florida to limit their movements and personal interactions
outside to their home only (Ex 7}. Therefore, on Anril 2, 2020, the Parties entered into a First
Amendment to the Operating Agreement which ratified the Parties’ original agreement in full, but
provided the Defendants to remain at the Property until thirty (30) days after the stay-at-home order

was lifted.

' Plaintiff is a principal of JSD Builders, Inc., which was a known fact to all parties.DiMauro vy. Martin, et al.
Case No. 50 2020 CA 008260 XXXX MB AA

The stay-at-home order was lifted on May 4, 2020. On June 25, 2020, Plaintiff gave written
notice to Defendants that they were in material breach of the Operating Agreement for failing to
timely vacate the Property (Ex 2). On July 9, 2020, Plaintiff gave written notice to Defendants that
they were in material breach of the Operating Agreement for failing to sign the requisite warranty
deed to transfer the Property to the Company (Ex 3).

Although the defenses raised at the Defendants’ deposition were limited to not wanting to
move during a pandemic, the legal arguments raised by Defendants’ counsel include a lack of

consideration and lack of mutuality on the part of Mr. DiMauro.

Witness Testimony

Joseph DiMauro

Joseph DiMauro testified that he has been a licensed general contractor since 1982 without

any suspensions or reprimands (Day 1, at 15:15-16:1), He tesitiied thai ne has built over 200 custom
homes (Day 1, at 16:2-4). The basic terms within the Operating Agreement are very common in the
industry (Day 1, at 50:23-51:8). Mr. DiMauro and Defendant Martin are next door neighbors at a
commercial warehouse, where the two of them became friendly and discussed this real estate
opportunity over several years (Day 1, at 17:16-20:19). Final construction costs were not known at
the time of signing the Operating Agreement because final selections were yet to be made (Day 1,

at 24:3-21). Defendants understood this arrangement and accepted it after negotiating the terms of

the Oneratina Aareament tacether (Rye 1 A and Dax 1, at 26: 14S 27: 10 and Dav 1 at TA4-77-2\

Ue UPC Gung JAG UCUICIKE LOBCUICL LUAU 4) Uy au Ley, Aiko anu way ty aL rus

The trial exhibits showed that Mr. DiMauro had spent time and expense on floor plans, elevations,
a demolition proposal, permit scheduling, soil testing, surveys, and a full set of mechanical,

plumbing, electrical, and civil engineering plans were ready to be submitted for permitting in

furtherance of the Operating Agreement (Exhs 18-19, 21, 28, Day 1, at 30:6-35:14 and 74:23-75:4;DiMauro vy. Martin, et al.
Case No. 50 2020 CA 008260 XXXX MB AA

Day 2, at 167:5-168:16)
Michael Martin

Mr. Martin testified that his wife (Claudia Kiwi) and him are in the real estate industry (Day
1, at 80:7-18). Mr. Martin verified that Mr. DiMauro and he discussed this real estate idea involving
the Lake Rogers property for years before entering into the Operating Agreement (Day 1, at 82:4-
84:17).

Mr. Martin testified at his deposition, which was read into the record, that the sole reasons
he did not want to abide by the Operating Agreement by vacating and signing the warranty deed in
favor of the Company was the fact that there was a pandemic (Day 1, at 90:6-91:6) and that his
quarantine at home made him realize how much he enjoyed his home (Day 1, at 93:7-95:23).

Mr. Martin testified that he had retained counsel to assist him with the Operating Agreement
(Day 1, at 100:4-101:5). Mr. Iviartin aiso iestified about receiving the various emails proving Mr.
DiMauro had spent time and expense on floor plans, elevations, a demolition proposal, permit
scheduling, soil testing, surveys, etc.. (Exhs 18-19, 21, 28; Day 1, at 105:13-Day 2, at 126:9). From
January 31, 2020, until at least June 15, 2020, Defendants were perfectly fine abiding by the terms
of the Operating Agreement (Day 2, at 127:2-5), but thereafter simply failed to abide by it for the
reasons set forth above.

Claudia Kiwi

Ms, Kiwi testified via the reading of her denosition testimony only, Ms, Kiwi testified that
she relied predominantly upon her husband to make the business decision for them (Day 2, at 128:6-
25). Ms. Kiwi admits that she also signed both the Operating Agreement and amendment, but

simply did not want to abide by the terms due to the pandemic (Day 2, 131:10-132:25).DiMauro vy. Martin, et al.
Case No. 50 2020 CA 008260 XXXX MB AA

Conclusion of Law

The evidence in this case proves that the parties entered into a valid and enforceable
agreement via the Operating Agreement and the First Amendment thereto. The Court finds no
essential terms missing. The cost-plus construction contract is a very common type of construction
contract. Vakili v. Hawkersmith, No. M2000-01402, 2001 WL 1173285 at *3 (TN Court of Appeals
2001); Lazovitz v. Saxon Construction, 911 F.2d 588 (11th Cir. 1990). The Operating Agreement
set forth with a great deal of specificity of how the contributions are arrived. The construction
contract was provided to the Defendants before the signing of the Operating Agreement (Exs 15-
16). The parties knew exactly what they were doing.

The parties agreed to tender their house as their contribution. It makes no difference whether

this is a homestead property. Article X Section 4 of the Florida Constitution provides an exception

    

a
men were 1s

 

Dligation Coniracied for ihe purchase of
such property. Here, this was a voluntary decision, and the Defendants are sophisticated persons in
the real estate industry. It also makes no difference that the Operating Agreement did not contain
two witnesses.

Defendants’ argument that the Operating Agreement required two (2) subscribing witnesses
is without merit. It is not the Operating Agreement that transferred the property. Rather, it is the
warranty deed, which clearly will require two (2) witnesses. Florida law has long recognized the
use of specific performance to enforce contracts for the sale of homestead property, Mirzatahori y,
FM East Developers, LLC, 193 So. 3d 19 (Fla. 3d DCA 2016); See also Rosenthal v. Finger and
Margolis, P.A., 460 So. 2d 993 (Fla. 4th DCA 1984)(since the adoption of the 1968 Constitution, it

is no longer required that a contract to sell homestead property be executed in the presence of two

subscribing witnesses); Carroll v. Dougherty, 355 So. 2d 843 (Fla. 2d DCA 1978)(same).DiMauro vy. Martin, et al.
Case No. 50 2020 CA 008260 XXXX MB AA

Contracts are voluntary undertakings and parties are free to bargain the specific terms and
conditions of their agreement. Okeechobee Resorts, LLC v. E Z Cash Pawn, Inc., 145 So. 3d 989,
993 (Fla. 4th DCA 2014). When parties do elect to include an integration clause, it is not up to the
Court to second guess whether such provision should have been included or to relieve a party for
what turns out to be a bad decision. Jd. Moreover, Section 13.8 states that each member
acknowledges having the opportunity to seek independent legal counsel prior to entering into this
operating agreement.

Regarding the Defendants’ argument that Mr. DiMauro needed to keep pushing the case
forward even as late as June of 2020 is equally without merit. Exh 2, which is the first written notice
of breach against the defendants by plaintiff, was dated June 25, 2020. That letter states that the

stay-at-home order expired on May 4. The Operating Amendment required then that Martin/Kiwi

    

by June 4. They did noi. We heard 1071 compl

until June, so the fact that JSD or Mr. DiMauro should have continued to move forward with the
project when the Defendants were in breach is nonsensical. It is black letter law that a material
breach by one side relieves the other party from further performance. Colucci v. Kar Kare
Automotive Group, 918 So. 2d 431 (Fla. 4th DCA 2006).

There is only one cause of action here; that is, specific performance. The elements of specific
performance are that: (1) the plaintiff is entitled to it; (2) there is no adequate remedy at law; and
(3} the judge believes that justice requires it, Linkous v. Linkous, O41 So, 2d 530 (Fla, Ist DCA
2006). This Court finds there is no adequate remedy at law because we do not know the amount of
the construction costs and we also do not know what the sales price would be, which would dictate

the profit split between the parties. As with all real estate, the parcel itself is unique and therefore

is incapable of a ready determination that would provide us with lost profits. George Vining & SonsDiMauro vy. Martin, et al.
Case No. 50 2020 CA 008260 XXXX MB AA

v. Jones, 498 So. 2d 695, 697 (Fla. 5th DCA 1986)(discussing how specific performance is
warranted with real estate given its uniqueness).

There is also no lack of mutuality here. Each party has the right to hold the other to a positive
agreement; that is, the Defendants vacating and contributing the Property, and the Plaintiff paying
for all construction costs. The Operating Agreement does not allow Plaintiff the unrestricted right
to terminate the Operating Agreement. There is no issue with any sort of personal service contract
as JSD Builders, Inc. is not a party to this action. If Defendants brought an action against Plaintiff
for breach of contract, and prevailed, the remedy would be a money judgment against Plaintiff for
the actual construction costs.

Although not pled as an affirmative defense, this contract does not fail for indefiniteness
because that would render every cost-plus contract invalid. Parties to a contract do not have to deal
Wiih every Contingency i order io have an enforceable contract. Nonessentiai terms may remain
open. A subsequent argument as to the construction of a contract does not affect the validity of the
contract or indicate the minds of the parties did not meet with respect to it. Where the parties agree
on the essential terms and seriously understand and intend the agreement to be binding on them, but
have a subsequent difference as to the construction of one of its provisions, the contract does not
fail for indefiniteness. Robbie v. City of Miami, 469 So. 2d 1384 (Fla. 1985); Innkeepers Int’l v.

McCoy Motels, 324 So. 2d 676 (Fla. 4th DCA 1975)(if the parties appeared to have made a contract,

the conrt chanid nat frnctrate

 

it ic noccthle to reach a fair and inet recnIt even if not
iS possible fo reach a fair and just result, even ifn:
all terms are set forth in the agreement). Additionally, the parties’ course of performance under the

contract before the controversy arises is evidence of their intention. Florida Capital Corp. v. Robert

J. Bissett Construction, 167 So. 2d 595 (Fla. 2d DCA 1964).

Here, the evidence presented was clear, competent, and satisfactory, showing all partiesDiMauro v. Martin, et al.
Case No. 50 2020 CA 008260 XXXX MB AA.

working in furtherance of the operating agreement for approximately six months after the operating
agreement was signed. Defendants have simply failed to perform despite signing and even ratifying
the Operating Agreement via the Frist Amendment.
Ruling

Accordingly, it is Ordered, Adjudged, and Decreed that Plaintiff is entitled to specific
performance as a result of the Defendants’ material breach of the Contract (by failing/refusing to
vacate and transfer the Property to the Company). There is no adequate remedy at law under the
circumstances of this case, and the Court believes justice so requires specific performance; that is,
the Defendants are required to transfer their interest in the Property via Warranty Deed to the
Company, as well as vacate the Property, on or before ninety (90) days of the date of this Order.

This Court reserve jurisdiction on entitlement to attorney fees pursuant to Fla. Stat., §
6u5. G805(2), as well as ria. RK. Ci. r. i. 370 and 1. 3806) based upon the Detenaanis’ failure to
admit the truth of a request for admission made pursuant to Fla. R. Civ. P. 1.370, as well as to
enforce any further requirements necessary under the Operating Agreement and First Amendment.

DONE and ORDERED and ADJUDGED in Chambers in West Palm Beach, Palm Beach
County, Floridaon this dayof____—, 2021.

GREGORY M. KEYSER
Circuit Judge

Copies provided to:

Stephen J. Padula, Esquire, Padula Bennardo Levine, LLP, 3837 NW Boca Raton Blvd.,
Suite 200, Boca Raton, Florida 33431; Email: SIP@PBL-Law.com

Arthur C. Koski, Esquire, Law Office of Arthur C. Koski, P.A., 101 North Federal Highway, Suite
602, Boca Raton, Florida 33432: Email: AKoski@KosIN THE CIRCUIT COURT OF THE 15" JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA

CASE NO: 50-2020CA008260XXXXMBAA

JOSEPH S. DIMAURO, derivatively and as a
Member of 784 LAKE ROGERS, LLC, a
Florida limited liability Company,

Plaintiff,
vs.

MICHAEL W. MARTIN and
CLAUDIA A. KIWI,

Defendants.
/

 

PROPOSED FINAL JUDGMENT

This cause having come before this Court for a non-jury Trial on May 19,

2021, and May 20, 2021.

This cause comes before this Court on the Complaint by the Plaintiff, JOSEPH

S. DIMAURO for specific performance and ine Answer and Affirmative Defenses of

the Defendants, MICHAEL W. MARTIN and CLAUDIA A. KIWI. The Court after

having considered the pleadings and the evidence presented and the legal

arguments and statements of counsel, and after having made the following findings

of fact and conclusions of law:

IT IS HEREBY ADJUGED AND ORDERED that judgment is entered on behalf

of the Defendants and the Plaintiff shall take nothing from its action and go hence

wwithart daw
Wiuiout Uay.FACTUAL FINDINGS

The Plaintiff in this cause is JOSEPH S. DIMAURO who appears derivatively
and as a member of 784 LAKE ROGERS LLC, a limited liability company.

The Defendants in this cause are MICHAEL W. MARTIN and CLAUDIA A.
KIWI who are residents of the State of Florida and who currently own and reside in
the homestead of the Defendants location at 784 Northeast 35" Street, Boca Raton,
Florida.

The Plaintiff, JOSEPH S. DIMAURO, has brought this derivative action against
the Defendants, MICHAEL W. MARTIN and CLAUDIA A. KIWI, for equitable relief in
the form of specific performance for the transfer of their homestead residence.

On or about January 31, 2020, MICHAEL W. MARTIN and CLAUDIA A. KIWI
along with JOSEPH S. DIMAURO executed an Operating Agreement for the limited
liability corporation known as 784 LAKE ROGERS LLC. Such Operating Agreement
has been by stipulation and received in evidence by the Court.

The evidence in this cause shows that the capital contribution of the
Defendanis was to be made through a transfer of ineir nomestead to ine iimited
liability corporation with a value of $1,250,000.

The Operating Agreement of the limited liability corporation is silent as to the
value of the capital contribution of the remaining member, JOSEPH S. DIMAURO.
Rather, the evidence shows that the capital contribution of JOSEPH S. DIMAURO
would be in the form of future services to be rendered. Those services, the Court

finds, were to be the construction and supervision of a house on the lot of the

 
 

had thrauah
nea unougi

 

Nafandante’ avictina hnmactaad Cunh arrannamant wine tn ha anna:
USisiiualls GAISUTg MONIGSLGaU. UCIT Gllalgenicit Was tO UG ACCU!a demolition of the Defendants’ homestead with a new home to be placed on such
real estate.

The responsibility of the Plaintiff, JOSEPH S. DIMAURO, was to have
prepared all necessary and complete plans and specifications for the construction of
a new home on the real estate of the Defendants and for the Plaintiff to apply for and
obtain from the City of Boca Raton all necessary permits for the construction of said
home.

In addition, the Plaintiff was to pay the cost of the construction of said house
and receive a construction fee of fifteen (15%) percent of the actual construction cost.
The physical construction of the home was to be achieved through a company owned
by the Plaintiff, JOSEPH S. DIMAURO, with the use of subcontractors and suppliers
to furnish all labor and materials for said construction. The evidence shows that the
construction company of the Plaintiff only had two employees to-wit: the Plaintiff and
his wife.

The business arrangement which was not fully described within the Operating
Agreement was aiter compietion of construction; fo seii the new nome wiin any profits
to be distributed between Plaintiff and the Defendants based on their capital
contribution.

The capital contribution of the Plaintiff to the limited liability corporation was to
be equal to the amount of the cost of construction plus the fifteen percent (15%) fee
for the performance of work by the Plaintiff's construction company known as JSD

BUILDERS, INC.Notwithstanding the intention of the parties and pursuant to the Operating
Agreement, the evidence shows that the Plaintiff has, by his own admission through
the date of the Non-Jury Trial, not provided or completed a full and complete set of
construction plans for the intended home and has not obtained any permits for the
anticipated home. Further, the testimony evidence shows that the Plaintiff has not
performed any specific estimates of the cost of the home intended to be constructed
on the property of the Defendants which would in any way indicate the capital
contribution of the Plaintiff to the limited liability corporation.

CONCLUSIONS OF LAW

In a suit for a specific performance, such as the instant litigation, mutuality of
obligation and remedy are essential for this Plaintiff to prevail. Insofar as mutuality of
remedies is concerned, it is clear that there must exist a recognized mutuality of
remedies in equity between the parties to this instant ligation which can constitute a
basis for awarding specific performance.

The Operating Agreement of the limited liability corporation contains no
timeirame for compietion of ine required performance by ihe Piaintitt io deveiop
plans, receive permits and complete construction of the home in question. It is clear
from the Operating Agreement that due to the lack of completeness of plans,
specifications, estimates and permits the Defendants could not have required such
personal services by suit for specific performance against the Plaintiff. The
Defendants could not have obtained relief for personal services by suit for specific

performance against the Plaintiff. Therefore, it is improper to grant the Plaintiff

enanifin narfarmanna anainct thaca Nafandante Caa Rurnar Chaf Guetame Inn ov

SpSUNG PSNCINGaNTG aganiot UIGSS VUIGIUGINS. OGG, DUIge! Wier Sysco, Wit. Vv.Burger Chef of Florida, Inc., 317 So.2d 795 (1975) (4*" DCA 1975); Florida-Georgia

Chemical, Inc. v. National Laboratories, Inc., 1537 So.2d 752 (18t DCA Fla. 1963);

 

Con-Dev of Vero Beach, Inc. v. Casano, 272 So.2d 203 (4 DCA Fla. 1973);

 

Sanchez v. Crandon Wholesale Drug Co., 173 So.2d 687 (Fla. 1965).

Each of the aforementioned cases hold, insofar as mutuality of remedies is
concerned, that there must exist a recognized mutuality of remedies in equity
between the parties to this suit which can constitute a basis for awarding specific
performance in this case at bar to Plaintiff, JOSEPH S. DiIMAURO. More
importantly, the concept relating to the Plaintiffs performance raises a bar to the
Plaintiff's demand for specific performance in that personal services cannot be
without specificity subject to a suit for specific performance.

Thus, It is error to grant specific performance to the Plaintiff, JOSEPH S.
DIMAURO as no like order could be had for the Defendants, MICHAEL W. MARTIN
and CLAUDIA A. KIWI.

The Court further finds as a conclusion of law that Plaintiffs remedy is such
inat Piaintiit must seek his damages at iaw snouid tnere be a preach by Defendanis
and this Court would conclude that the remedy of damages is adequate to
compensate Plaintiff should the Defendants in this cause be found to have breached
their obligation.

This Court further finds as a conclusion of law that there is a lack of
consideration and a want of consideration in the Operating Agreement which Plaintiff

alleges to be a contract between the parties.As set forth in Charles H. Jones v. H.E. McCallum, 21 Fla. 392 (1885) want of
consideration and failure of consideration as a practical result are the same. Under a
want of consideration, the agreement is void and under a failure of consideration the
agreement is valid at the time of making but cannot be enforced because of failure of
the consideration on which it was based.

The omission of capital contribution by the Plaintiff with the statement that the
Plaintiff would provide future services which have not been specifically identified
within a specified timeframe, or for a specific cost, result in both a want of
consideration and a failure of consideration.

The initial consideration was intended that the Defendants would contribute
their homestead and the Plaintiff would provide services and funds for construction of
an agreed upon home. The Plaintiff has failed to provide the services which were
identified in the Operating Agreement and further, the failure to even provide an
agreed upon value of the home to be constructed constitutes such a total failure of
consideration such that the Operating Agreement, as the basis for any action, should
fail for a iotai want of and iack of consideration.

The law is clear that when a party fails to perform a service and such

performance is the sole consideration, the holding of McCranie et al v. Cason, 79 Fla.

 

857 (1920) should be applied. In cases of the kind where the consideration is itself a

promise to perform a service, until such time as the service is performed, there is no

consideration, and the promise is void from the beginning.FINAL JUDGMENT

Based on the evidence submitted and the foregoing factual findings and
conclusions of law, the Court makes the following rulings:

IT IS DECLARED, ADJUDGED AND ORDERED that the relief sought by the
Plaintiff of specific performance is herewith DENIED with a Final Judgment being
entered in favor of the Defendants, MICHAEL W . MARTIN and CLAUDIA A. KIWI,
and the Court herewith retains jurisdiction for any supplemental proceedings which
may be required.

DONE AND ORDERED in Chambers, at West Palm Beach, Palm Beach County,

Florida, this day of June 2021.

HONORABLE GREGORY KEYSER

Copies furnished to:

Arthur C. Koski, Esquire; akoski@koskilaw.com
Stephen Padula, Esquire; sip@pbl-law.comIN THE CIRCUIT COURT OF THE 15"

JUDICIAL CIRCUIT IN AND FOR
PALM BEACH COUNTY, FLORIDA

CIRCUIT CIVIL DIVISION AA
CASE NO: 50-2020CA008260XXXXMB

JOSEPH S. DIMAURO, derivatively and as a
Member of 784 LAKE ROGERS, LLC, a
Florida limited liability Company,

Plaintiff,
vs.

MICHAEL W. MARTIN and
CLAUDIA A. KIWI,

Defendants.

 

FINAL DISPOSITION FORM
(Fia.R.Civ.P, Form 1.998)
THE CLERK IS DIRECTED TO CLOSE THIS.
FILE MEANS OF FINAL DISPOSITION

  

Dismissed After Hearing

FINAL JUDGMENT

THIS CAUSE came before this Court for a Non-Jury Trial on May 19, 2021,

and May 20, 2021. This cause specifically came before this Court on the Complaint

(D.E. #2) filed by the Plaintiff, JOSEPH S. DIMAURO, derivatively and as a Member

of 784 Lake Rogers, LLC, for specific performance for the alleged failure of the

 

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Velenuails wo aviue vy Wie UpeEr

ae Kaen nen ant Af a nanan: thann mactinn fae
ig AY SEMEnt OF 4 COMpany WIESE parues ormed

known as 784 Lake Rogers, LLC (at times referred to herein as the “Company”), and

the Defendants, MICHAEL W. MARTIN and CLAUDIA A. KIWI’s, Answer and

Affirmative Defenses (D.E. #9). The Court having reviewed and considered the

pleadings, the court file, the testimony and documentary evidence presented during

Page 1 of 11the trial, all legal authority submitted on behalf of the parties, the legal arguments and

statements of counsel, and being otherwise fully advised in the premises, makes

findings of fact and conclusions of law as follows:

FACTUAL FINDINGS

The Defendants in this cause are MICHAEL W. MARTIN and CLAUDIA A.
KIWI, who are residents of the State of Florida and who currently own and reside in
the homestead of the Defendants located at 784 Northeast 35" Street, Boca Raton,
Florida (at times referred to herein as the “Property”). The Plaintiff, JOSEPH S.
DIMAURO, has brought this derivative action against the Defendants, MICHAEL W.
MARTIN and CLAUDIA A. KIWI, for equitable relief in the form of specific
performance for the transfer and deed of their homestead residence to the Company
(784 Lake Rogers, LLC) these parties had formed.

On or about January 31, 2020, MICHAEL W. MARTIN and CLAUDIA A. KIWI
along with JOSEPH S. DIMAURO executed an Operating Agreement for the limited
iiability corporation known as 784 LAKE ROGERS LLC. Such Operating Agreement
has by stipulation of the parties been received in evidence by the Court as Stipulated
Trial Exhibit #1. Per this Operating Agreement, the purpose of the Company was to
acquire the homestead Property owned by the Defendants, and then develop the
Property through a non-party builder (JSD Builders, Inc.) by demolishing the home
and building back a new custom single-family Residence on the Property, which the

Company would then seek to sell for a profit. The distribution of the profits was to be

 

haead unan aach narhile Canital Cantrihiitinn ta tha Camnany
Dasea Upon Gach pany o Vapnar UCrunuUCT! LO ule UCmipany.

Page 2 of 11The evidence in this cause shows that the Defendants were jointly designated
as one Member (Martin/Kiwi) of the Company and that the Capital Contribution of the
Defendants was to be made through a transfer and deed of their homestead Property
to the Company, which the parties agreed had a value of $1,250,000 for their Capital
Contribution.

Joseph S. DiMauro individually was the other Member of the Company. The
Operating Agreement of the Company described Mr. DiMauro’s Capital Contribution
to the Company as the cost of construction of the new Residence to be built on the
Property, pursuant to the budget, plans and specifications attached to the Operating
Agreement as Schedule “B”, the total value of which will not be determined until the
construction of the new Residence on the Property is completed and the Manager
(Mr. DiMauro) has issued the Certification of Completion. The parties have never
agreed on a dollar value for Mr. DiMauro’s Capital Contribution. Mr. DiMauro does
not argue that his Capital Contribution has a specific dollar value that can be
calculated based upon the evidence presented.

Tne Gperating Agreement entered into evidence as Stipuiaied Triai Exnibit #1
did not include a Schedule B with a budget, plans and specifications as indicated.
There was a Schedule A for the Name, Address, and Capital Contribution of the
Members attached to the Operating Agreement Stipulated Trial Exhibit #1. This
Schedule A did identify the Defendants as one Member of the Company with their
Membership Interest and Value of Capital Contribution of Member for Martin/Kiwi

listed as $1,250,000.00. This Schedule A is silent as to the value of the Capital

  
 

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Page 3 of 11line ($____). While the final distribution and allocation of cash or other assets of the
Company would conceptually be based upon the Member's percentage interest in
the Company, Schedule A is also silent and blank as to the percentage Member
interest of these parties, because a percentage interest has never been able to be
determined because no dollar value was ever placed on Mr. DiMauro’s Capital
Contribution. Rather, the evidence shows that the capital contribution of Joseph S.
DiMauro would be in the form of future services to be rendered. Those services, the
Court finds, were to be the construction and supervision of a house on the lot of the
Defendants’ existing homestead. Such arrangement was to be accomplished through
a demolition of the Defendants’ homestead with a new Residence to be placed on
the Property.

The responsibility of the Plaintiff, Joseph S. DiMauro, was to have all
necessary and complete plans and specifications for the construction of a new home
on the real estate of the Defendants prepared, and for the Plaintiff to apply for and
obtain from the City of Boca Raton all necessary permits for the construction of said
construction company he and his wife owned, JSD Builders, Inc., and pay the cost of
the construction of said Residence and pay his construction company, JSD Builders,
Inc., a construction fee of fifteen (15%) percent of the actual construction cost. The
physical construction of the home was to be achieved through JSD Builders, Inc. with
the use of subcontractors and suppliers to furnish all labor and materials for said

construction. The evidence shows that the construction company of the Plaintiff only

 
 

 

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Page 4 of 11The general business arrangement, which was not fully described in detail
within the Operating Agreement, was that after completion of construction to then sell
the new Residence with any profits to be distributed between Plaintiff and the
Defendants based on their percentage of Capital Contribution.

The Capital Contribution of the Plaintiff to the Company was to be equal to the
amount of the cost of construction plus the fifteen percent (15%) fee for the
performance of work by the Plaintiff's construction company known as JSD Builders,
Inc. Notwithstanding the intention of the parties, and pursuant to the Operating
Agreement, the evidence shows that the Plaintiff has, by his own admission through
the date of the Non-Jury Trial, not provided or completed a full and complete set of
final construction plans and specifications for the intended new Residence and has
not applied for or obtained any permits for the intended new Residence. Further, the
testimony and evidence demonstrated that the Plaintiff has not performed any
specific, detailed estimates of the cost of the home intended to be constructed on the
property of the Defendants that would in any way establish the Capital Contribution of
ihe Piaintiit io the Company.

The evidence at trial demonstrated that the Plaintiff's estimate of how much
money he would contribute to the Company was based upon his experience in
building other similar homes. The evidence was that as of the time of trial, the
expected construction costs were different and higher than when the Operating
Agreement was signed, but those specific construction costs were not established or

detailed at any time. The Plaintiff never contacted any potential subcontractor or

nravidad any nrannead euhenntrantar anv final nlane  enanifinatinne nr datailad
proviacsa any proposea SuvcCnuaciwW: any ima: prans, SpecmCauons Or Gcianca

Page 5 of 11drawings to obtain an accurate dollar bid for the work to be performed. No description
of the materials to be used in construction of the new Residence to obtain a more
accurate cost of construction was never prepared or provided to any potential
subcontractor. The evidence was that Mr. DiMauro provided the Defendants with a
Preliminary Budget to approximate what his Capital Contribution would be, but that
was never finalized to more than a general approximation. Mr. Dimauro’s Capital
Contribution has never been able to be calculated with any precision.

Mr. DiMauro testified providing the Defendants the Preliminary Budget
attached to the Construction Contract that was entered into evidence as Stipulated
Trial Exhibit #16 as the basis of what he estimates would be his Capital Contribution
to the Company. As stated in that attachment, this was only a Preliminary Budget that
included cost line items for: Land Cost, New Home Construction Costs, General
Contractor Fee, Insurance House Under Construction cost, Taxes House Under
Construction costs, Architect and Engineer, New Concrete Dock