DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
January Term 2007
FRANK B. WODZISZ,
LIVE OAK LAND, LLC, a Florida Limited Liability Company,
[February 7, 2007]
In this appeal, Frank Wodzisz, the seller in a land sales contract,
challenges a final summary judgment ordering specific performance in
favor of the buyer, Live Oak Land, LLC. Because genuine issues of
material fact exist, we reverse.
The contract for this large, twenty-acre parcel of mostly unimproved
land was subject to a rezoning contingency whereby the purchase price
was subject to an upward adjustment based on the number of units for
which zoning approval was obtained by Wodzisz.
purchase price assumed zoning would be granted for twenty-eight
residential units. Under the addendum, if only twenty-seven units were
approved, the price would be $1,300,000 and if twenty-six or fewer units
were approved, the price would be $1,250,000. Closing was to take place
sixty days following the final rezoning of the property.
demanded a closing prior to September 16, 2004, because he maintained
that Live Oak waived the rezoning contingency on July 13, 2004, when
following a Martin County Board of County Commissioners’ meeting, Joe
Lelonek, a Live Oak principal, told him that “zoning has failed” and Live
Oak “wanted to put ‘for sale’ signs on the property at that time.” The
dispute ended in litigation when Live Oak refused to close prior to
September 16, 2004, and maintained that the contingency was not
waived until September 9, 2004, when Live Oak’s counsel sent Wodzisz
an e-mail expressly waiving the development condition. In granting
summary judgment, the trial court ruled in favor of Live Oak and granted
specific performance. Because genuine issues of material fact exist
concerning when the zoning contingency was waived and when the
contract expired, we reverse. See Moore v. Morris, 475 So. 2d 666, 668
(Fla. 1985) (noting that the court must draw every possible inference in
favor of the party against whom summary judgment is sought).
Lastly, Live Oak failed to present evidence that it was ready, willing
and able to close prior to the expiration of the contract, and we reverse
for this reason as well. While the “ready” and “willing” part of the test
may well be satisfied by Live Oak’s October correspondence proposing
the November 15, 2004 closing date, the “able” part requires more than a
conclusory assertion. In order to establish a prima facie case, the party
seeking specific performance must prove that it: a) had the needed cash
on hand; b) had assets and a credit rating which would enable it with
reasonable certainty to command the requisite funds at the requested
time; or c) that it had a binding commitment for a loan from a financially
able third party. See Hollywood Mall, Inc. v. Capozzi, 545 So. 2d 918,
920–21 (Fla. 4th DCA 1989). Because Live Oak failed to present such
prima facie proof, the order of summary judgment commanding specific
performance was improper.
Reversed and Remanded.
WARNER and TAYLOR, JJ., concur.
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Robert R. Makemson, Judge; L.T. Case No. 04-804-CA.
Virginia P. Sherlock and Howard K. Heims of Littman, Sherlock &
Heims, P.A., Stuart, for appellant.
Kip A. Davis of Vassallo & Bilotta, P.A., Stuart, for appellee.
Not final until disposition of timely filed motion for rehearing.