THE ALLEGRO AT BOYNTON BEACH, LLC v. C. BRUCE PEARSON and OLSON LAND PARTNERS, LLC

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

THE ALLEGRO AT BOYNTON BEACH, L.L.C., a Florida Limited Liability
Company,
Appellant,

v.

C. BRUCE PEARSON, an Individual, and OLSON LAND PARTNERS,
LLC,
Appellees.

No. 4D18-3387

[November 27, 2019]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Cymonie Rowe, Judge; L.T. Case No. 50-2015-CA-007970-
XXXX-MB.

Wade McK. Hampton of Duss, Kenney, Safer, Hampton & Joos, P.A.,
Jacksonville, for appellant.

Ronald M. Gaché and Scott A. Simon of Shapiro, Fishman & Gaché,
LLP, Boca Raton, for appellee C. Bruce Pearson.

CIKLIN, J.

In the second appeal pertaining to this litigation, the Allegro at Boynton
Beach, LLC (“Allegro”) appeals a final judgment entered in favor of the
defendant below, C. Bruce Pearson (“the Seller”). The final judgment
incorporates an order denying Allegro’s motion for summary judgment and
granting the Seller’s renewed cross motion for summary judgment. We
reject both of the issues Allegro raises on appeal and we affirm.

I. FACTS

This appeal arises from an action involving a contractual right of first
refusal to purchase real property (“the ROFR”). The ROFR was assigned
to Allegro, which operates a senior housing community on an adjacent
parcel of land.

Language in the contract governing the ROFR provides that, prior to
the Seller’s transfer of the real property (the “Refusal Property”), the Seller
shall deliver a copy of the third party sale contract to Allegro. Allegro “shall
have the right to elect, within ten (10) days after its receipt of the [third
party sale contract], to purchase the Refusal Property at the same price
and upon the same terms and conditions as those contained in the [third
party sale contract] by giving written notice to Seller within the ten (10)
day period.”

The contract also provides that notices shall be delivered by “mail,
personal delivery or electronic media” and that “[a]ny notice, document or
item delivered to or received by an attorney . . . representing a party will
be as effective as if delivered to or by that party.” Further, “[i]f for any
reason . . . Seller fails, refuses or neglects to perform this Contract,
[Allegro] may choose to receive a return of [Allegro’s] deposit. . . or to seek
specific performance. . . .”

The Seller first found a buyer for the Refusal Property, Cameron
General Contractors, Inc., in September 2013 for the sale price of $2.5
million. As it was permitted to do, Allegro exercised its ROFR to purchase
the property under the same terms and conditions as the Cameron
Contract.

In September 2014, Allegro terminated its contract to purchase the
Refusal Property, stating that “the current development environment in
Palm Beach County and in Boynton Beach in particular makes the likely
path of any approval process of the [Refusal] Property extremely lengthy
as well as both time and cost prohibitive,” and demanded return of its
earnest money. Litigation ensued and ended in settlement without the
sale of the Refusal Property.

Thereafter, in May 2015, the Seller procured yet another buyer and
entered into a contract with Olson Land Partners, LLC (“Olson”) for $3.75
million. On June 12 and 24, 2015, Allegro demanded a copy of the
tentative contract with Olson pursuant to the terms of the ROFR (the
“Olson Contract”). The Seller advised that he would not forward the
contract and that it was the Seller’s “position that the right of first refusal
was effectively terminated upon Allegro’s decline last September to close
on the last contract they had on the subject property.”

Two days later, in July 2015, Allegro filed suit, alleging the following
counts and seeking the following remedies: (I) breach of contract; (II)
declaratory judgment that the ROFR is valid, binding, and enforceable,
that the Seller is in breach, and that Allegro is entitled to enforce the
ROFR; (III) injunctive relief to compel the Seller to perform under the

2
ROFR, provide a copy of the Olson contract to Allegro, and comply with
the ROFR; and (IV) specific performance: “judgment requiring the [Seller]
to perform the ROFR . . . .”

Allegro then received the Olson Contract through counsel as an
attachment to Olson’s motion to intervene filed on December 23, 2015 and
through document production from the Seller on January 8, 2016.

The Seller asserted several counterclaims against Allegro, including a
counterclaim for declaratory relief seeking judgment finding that the ROFR
is no longer in effect based on Allegro’s receipt of the Olson Contract and
failure to timely exercise its rights. In support of his claims, the Seller
pointed out that Allegro received a copy of the Olson Contract through
litigation and “failed to timely exercise any rights it might still have under
the ROFR.” The Seller attached a copy of the Olson Contract to his answer,
affirmative defenses, and counterclaims.

Allegro moved for partial summary judgment on counts I and II and the
Seller moved for summary judgment on all of his counts. The trial court
denied the Seller’s motion for summary judgment but granted Allegro’s
motion for summary judgment. In ruling on the motions, the trial court
found that the ROFR remains in effect, that the Seller anticipatorily
breached the ROFR in his letter stating his position that the ROFR was
effectively terminated, and that, because of the anticipatory breach, “the
Court need not reach Seller’s argument that the Olson Agreement was
delivered in accordance with the ROFR during discovery.”

Thereafter, Allegro filed a “Motion for Entry of Final Judgment of
Specific Performance Upon Election of Remedy,” seeking to have the trial
court direct the Seller to deliver the Olson Contract pursuant to the terms
of the ROFR. As an exhibit to the motion, Allegro attached a revised
version of the Olson Contract that substitutes Allegro’s name for Olson’s.

The trial court denied Allegro’s motion without explanation. It granted
a motion for summary judgment filed by Olson, determining that Allegro
made an election of remedies when it moved for recovery on breach of the
ROFR, and, therefore, Allegro may not seek specific performance. The first
appeal ensued.

Allegro’s First Appeal

On appeal, in Allegro at Boynton Beach, L.L.C. v. Pearson, 227 So. 3d
1288, 1289 (Fla. 4th DCA 2017), this court ultimately determined that
Allegro did not make an election of remedies that prevented it from seeking

3
specific performance, and also determined as follows:

Two days [after the entry of the order on the parties’
motions for summary judgment], in an attempt to evade
Allegro’s pursuit of its right of first refusal, [Olson] terminated
the first agreement to purchase the parcel, and then signed a
new agreement with the Seller to purchase the same parcel—
this time at a considerably higher purchase price with a
shortened inspection period. The Seller delivered the new
agreement to Allegro giving it ten days to exercise its right of
first refusal.

....

When an owner enters into a contract for sale, a pre-
existing right of first refusal is “converted into an irrevocable
option to purchase.” Vorpe v. Key Island, Inc., 374 So. 2d
1035, 1037 (Fla. 2d DCA 1979); see 1 Williston on Contracts,
§§ 5:15, 5:16, 5:18 (4th ed. May 2017). Once a holder’s right
of first refusal ripens into an option, the option is not affected
by termination of the underlying contract. Vorpe, 374 So. 2d
at 1037; see also King v. Hall, 306 So. 2d 171, 173 (Fla. 1st
DCA 1975).

Here, once the Seller entered into the purchase agreement
with [Olson], Allegro’s right of first refusal was converted into
an irrevocable option to purchase. [Olson]’s subsequent
termination of the purchase agreement did not affect Allegro’s
option. The trial court erred in finding that the termination of
the purchase agreement divested Allegro of its option to
exercise its right of first refusal.

We reverse the trial court’s grant of summary judgment to
[Olson] and remand for further proceedings.

Id. at 1289-91. In a footnote, this court explained:

We find no error in the denial of Allegro’s motion [seeking
specific performance]. The order granting Allegro’s motion for
summary judgment established only that the Seller breached
the parties’ agreement. If Allegro chooses to pursue the
remedy of specific performance, it bears the evidentiary
burden of establishing its entitlement to this equitable
remedy. See Sunbank, N.A. v. Retirement Facility at Palm–Aire,

4
 Ltd., 698 So. 2d 392 (Fla. 4th DCA 1997).

Id. at 1289 n.1.

Following the appeal, Allegro filed a “Motion for Summary Judgment as
to Plaintiff’s Entitlement to the Remedy of Specific Performance.” Allegro
sought “the entry of summary judgment of specific performance as a
matter of law, requiring Pearson to perform under the Original Contract
and ROFR, by delivering the Olson [Contract] to Allegro. . . .”

The Seller then filed a renewed cross motion for final summary
judgment on counts III and IV of Allegro’s complaint (injunctive relief to
compel the Seller to perform under ROFR by providing a copy of the Olson
Contract and specific performance) and on his counterclaim for
declaratory judgment. Therein, he asserted that Allegro’s request for an
order requiring that he deliver the Olson contract was moot because he
had, on several occasions, previously delivered the contract and Allegro
repeatedly failed to exercise the ROFR.

After a hearing, the trial court entered an order denying Allegro’s
motion and granting the Seller’s cross motion, reasoning as follows:

The Court finds that [the Seller] delivered a copy of the
[Olson] Contract on January 8, 2016, when [the Seller]’s
attorneys produced documents in response to discovery. That
same day, Allegro’s attorneys acknowledged receipt of that
document production. Additionally, on January 25, 2016,
when filing the Amended Answer, Affirmative Defenses and
Counterclaim delivered another copy of the Olson Contract
when attaching it as an exhibit thereto.

****

The court finds that [the Seller] has satisfied the delivery
requirement under the ROFR by providing Allegro with a copy
of the Olson Contract, both as part of its document production
and as an exhibit to its operative pleading.

The fact that [the Seller] delivered the Olson Contract to
Allegro during the course of litigation is immaterial, so long as
Allegro received it, which it did. See, Vorpe v. Key Island, Inc.,
374 So. 2d 1035, 1036 (Fla. 2nd DCA 1979). To hold
otherwise, and require that [the Seller] deliver the Olson
Contract to Allegro in a certain manner, or at a certain time,

5
 other than what is written in the parties’ agreement, would be
the equivalent of rewriting the parties’ agreement by adding
extraneous conditions to it. Thus, “[i]t is the substance and
not the form which is controlling.” See Taylor v. Lutz, 134 So.
3d 1146, 1148 (Fla. 1st DCA 2014)[.]

In the instant case, after receipt of the Olson Contract,
Allegro failed to timely elect to purchase the Refusal Property
at the same price and upon the same terms and conditions as
those contained in the Refusal Contract, by giving written
notice to Seller within the ten-day period. Allegro also failed
to timely tender or otherwise pay the earnest money deposit
required under the Olson Contract. The Court does not find
that Allegro anticipatorily breached the contract.

Accordingly, [the Seller], by delivering a copy of the Olson
Contract to Allegro, has fully complied with his obligations
under the ROFR and Allegro, by failing to timely elect to
purchase the Refusal Property after its receipt of the Olson
Contract, has failed to exercise any rights it might have under
the ROFR.

(Emphasis added) (footnote omitted).

Thereafter, the trial court entered an order granting final judgment in
favor of the Seller, in which it adopted the reasoning in the Order on
Motions for Summary Judgment.

II. ANALYSIS

Allegro’s Second Appeal

Allegro appeals again arguing initially that the trial court erred in
denying Allegro’s motion for summary judgment on the remedy of specific
performance. We find that Allegro has waived its right to relief with respect
to the denial of its motion for summary judgment. As we explained in
Congress Park Office Condos II, LLC v. First-Citizens Bank & Trust Co., 105
So. 3d 602 (Fla. 4th DCA 2013):

“[W]hen a decree of the trial court is brought . . . on appeal
the duty rests upon the appealing party to make error clearly
appear.” Lynn v. City of Fort Lauderdale, 81 So. 2d 511, 513
(Fla. 1955) (citing F E C News Co. v. Pearce, 58 So. 2d 843
(Fla. 1952)). To this end,

6
 [a]n appellant does not discharge this duty by merely
posing a question with an accompanying assertion that
it was improperly answered in the court below and then
dumping the matter into the lap of the appellate court
for decision. Under such circumstances it must be held
. . . that [the appellate court is] under no duty to answer
the question.

Id.

Id. at 610 (second & third alterations in original); see also Polyglycoat Corp.
v. Hirsch Distributors, Inc., 442 So. 2d 958, 960 (Fla. 4th DCA 1983) (“It is
the duty of counsel to prepare appellate briefs so as to acquaint the Court
with the material facts, the points of law involved, and the legal arguments
supporting the positions of the respective parties. When points, positions,
facts and supporting authorities are omitted from the brief, a court is
entitled to believe that such are waived, abandoned, or deemed by counsel
to be unworthy.” (citation omitted)).

Allegro cites a single quote from a single case in support of this issue,
Beefy Trail, Inc. v. Beefy King Int’l, Inc., 267 So. 2d 853 (Fla. 4th DCA
1972), which, as it relates to the case at hand, stands for the very broad
proposition that specific performance is a judicial remedy available against
one who has breached a contract, but otherwise states that the opinion is
“not concerned with” the remedy of specific performance. Id. at 856. Other
than this one citation, Allegro simply regurgitates facts from prior
proceedings rather than providing any type of meaningful analysis.
Accordingly, we find this issue to be waived.

Allegro next argues that the trial court erred in granting the Seller’s
cross motion for summary judgment, therein finding the Seller had
delivered the contract by providing copies in discovery. Allegro contends
that the finding is (a) contradictory to the findings of the first summary
judgment order, (b) in conflict with Florida law on delivery, and (c) in
conflict with Florida law mandating that a party is relieved of further
performance upon the other party’s breach. We disagree.

An order granting or denying summary judgment is reviewed de novo.
See Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130
(Fla. 2000).

A. Findings of the First Summary Judgment Order

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 Allegro first argues that the trial court erroneously granted the Seller’s
motion for summary judgment because it ignored its prior ruling that the
Seller breached the ROFR. Again, as an initial point, we find that Allegro
waived this sub-issue, as it fails to supply any law or analysis to support
its point.

Regardless, its argument fails. Allegro refers to the initial summary
judgment ruling entered by a predecessor judge: “Because the Court finds
the ROFR was anticipatorily breached, the Court need not reach Seller’s
argument that the Olson Agreement was delivered in accordance with the
ROFR during discovery.” It argues that the previous finding conflicts with
the successor judge’s findings in the order on appeal that the Seller fully
complied with his obligations under the ROFR and that Allegro failed to
timely exercise its rights.

The issue before us is a trial court’s ability to revisit the findings
regarding anticipatory breach and mootness of the delivery issue. We have
previously explained:

As a matter of “comity and courtesy,” a judge should hesitate
to undo the work of another judge who presided earlier in the
case. Tingle v. Dade County Bd. of County Comm’rs, 245 So.
2d 76, 78 (Fla. 1971). However, prior to final judgment, a
successor judge has the power to vacate or modify a
predecessor’s interlocutory rulings, such as an order on a
motion for summary judgment. See . . . Collier v. Dade
County, 417 So. 2d 695, 696 n.1 (Fla. 3d DCA 1982) (rejecting
appellant’s argument that successor judge was precluded
from revisiting predecessor’s denial of summary judgment).

Hull & Co., Inc. v. Thomas, 834 So. 2d 904, 906 (Fla. 4th DCA 2003).

Accordingly, the successor judge did not err in entering its rulings
merely because the issues were decided differently by the predecessor
judge.

Nor is there a “law of the case” problem. “The doctrine of the law of the
case requires that questions of law actually decided on appeal must govern
the case in the same court and the trial court, through all subsequent
stages of the proceedings.” Fla. Dep’t of Transp. v. Juliano, 801 So. 2d 101,
105-06 (Fla. 2001).

In the first appeal, this court noted that “[t]he order granting Allegro’s
motion for summary judgment established only that the Seller breached

8
the parties’ agreement.” Allegro, 227 So. 3d at 1289 n.1. However, that
order was not challenged on appeal. Accordingly, whether the trial court
properly found that the Seller breached the parties’ agreement was not a
“question[] of law actually decided” in the first appeal.

Consequently, the successor judge did not err by “ignoring” this finding
and declining to find that the Seller breached the ROFR.

B. Florida Law on Delivery

Allegro next argues that the Seller’s cross motion for summary
judgment was erroneously granted because it runs afoul of Florida law on
delivery requiring the grantor’s intent, citing Parramore v. Parramore, 371
So. 2d 123 (Fla. 1st DCA 1978):

As is stated in Smith v. Owens, 91 Fla. 995, 1001-02, 108
So. 891, 893 (1926), the critical issue respecting delivery is
whether the grantor’s intent and action released or reserved
the locus poenitentiae, the opportunity to change his mind:

Actual manual delivery and change of possession are
not always required in order to constitute an effectual
delivery. The intention of the grantor is the determining
factor. . . . In the well-considered case of Gulf Red Cedar
Co. v. Crenshaw, 169 Ala. 606, 53 So. 812, the following
propositions are announced: No formality or particular
words or acts are essential to the delivery of a deed;
delivery being a matter of intention, which may be
manifested by acts and declarations, and may consist
of a transfer of the conveyance without spoken words,
or by spoken words without manual act. . . . The test of
delivery of a conveyance is whether the grantor intended
to reserve to himself the locus poenitentiae, and, if he
did, there is no delivery; but if he parts with the control
of the deed, or evinces an intention to do so, and to pass
it to the grantee, though he may retain the custody or
turn it over to another, or place it upon record, the
delivery is complete.

Id. at 124-25.

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 Citing Parramore’s explanation of locus poenitentiae, Allegro contends
that the Seller did not deliver the Olson Contract because he “had no
intention of ‘delivering’ the Olson Contract” when he produced it during
litigation.

However, as the Seller points out, the cases on which Allegro relies are
distinguishable from the case at hand because they pertain to deeds, real
property, and negotiable instruments. See City Nat’l Bank of Miami, N. A.
v. Wernick, 368 So. 2d 934, 936 (Fla. 3d DCA 1979) (finding that check
was not delivered and noting that “delivery is essential to the existence of
the instrument as a legal obligation”); Parramore, 371 So. 2d at 124
(“Delivery is ‘the life of a deed’; without it no deed is good . . . .”); Smith v.
Owens, 108 So. 891, 893 (1926) (“The test of delivery of a conveyance is
whether the grantor intended to reserve to himself the locus poenitentiae,
and, if he did, there is no delivery . . . .”).

Regardless of these distinctions, Allegro’s locus poenitentiae theory is
not compelling. Because the Olson Contract is not a deed or a negotiable
instrument or other document with indicia of ownership, had the Seller
delivered the Olson Contract upon Allegro’s first demand, he would not
have relinquished control of the property. Rather, he could have just as
easily refused to contract for the sale with Allegro. We decline to extend
the requirement of locus poenitentiae to delivery of a mere contract.

Allegro offers us no alternative theory on which we can or should reverse
the trial court’s finding that the Olson Contract was delivered within the
meaning of the terms of the ROFR, so we must affirm with respect to this
argument. See Congress Park, 105 So. 3d at 610 (“[T]he duty rests upon
the appealing party to make error clearly appear.” (quoting Lynn, 81 So.
2d at 513)).

C. Relief of Performance Upon Breach

Allegro finally argues that it was relieved from performing because of
the Seller’s anticipatory repudiation. This argument, too, must fail.

[T]he anticipatory b[r]each of a contract by one party may
excuse the other party from performing a condition precedent
to that contract. An anticipatory breach of contract occurs
before the time has come when there is a present duty to
perform as the result of words or acts evincing an intention to
refuse performance in the future.

Alvarez v. Rendon, 953 So. 2d 702, 709 (Fla. 5th DCA 2007). “Under the

10
doctrine of futility, a party may be excused from performing a condition
precedent to enforcement of the contract, if performance of the condition
would be futile.” Id. at 708-09.

The Seller’s July 2015 letter refusing to deliver the Olson Contract
would seem to fit the bill of an anticipatory breach. However, the general
rule is that the doctrine of anticipatory breach does not apply to a
unilateral contract. See Haelterman v. Haelterman, 846 So. 2d 1229, 1230
(Fla. 2d DCA 2003); see also Poinciana Hotel of Miami Beach, Inc. v.
Kasden, 370 So. 2d 399, 402 (Fla. 3d DCA 1979) (Schwartz, J., dissenting)
(“[T]he general, in fact well-nigh universal, rule [is] that there may be no
such ‘anticipatory breach’ of a strictly unilateral obligation such as one
merely to pay money in installments under a promissory note, including
one secured by a mortgage.”).

This court established in the first appeal that, once Olson and the Seller
entered into the Olson Contract, the ROFR was converted into an option:
“Here, once the Seller entered into the purchase agreement with the Buyer,
Allegro’s right of first refusal was converted into an irrevocable option to
purchase.” Allegro, 227 So. 3d at 1291. “An option contract is ‘a unilateral
contract which gives the option holder the right to purchase under the
terms and conditions of the option agreement.’” Old Port Cove Holdings,
Inc. v. Old Port Cove Condo. Ass’n One, Inc., 986 So. 2d 1279, 1285 (Fla.
2008) (quoting S. Inv. Corp. v. Norton, 57 So. 2d 1, 2 (Fla. 1952)). In the
context of an option to purchase property, it is not until the option holder
manifests to the owner a desire to purchase the property that a bilateral
contract exists. Doolittle v. Fruehauf Corp., 332 So. 2d 107, 109 (Fla. 1st
DCA 1976) (holding that at the time the optionee-tenant unequivocally
communicated his decision to exercise his option to purchase a property,
“the option became a bilateral contract, binding on both parties, and
susceptible of enforcement by a court of equity in a suit for specific
performance”).

As established in the first appeal, after the Seller and Olson entered
into the Olson contract, Allegro then held an option, a unilateral contract.
Because Allegro failed to manifest its intent to purchase the property, the
option was not converted into a bilateral contract. As a consequence, the
doctrine of anticipatory repudiation does not apply and as such, Allegro’s
performance was not excused.

Allegro has not supplied any authority or analysis to demonstrate that
the general rule should not apply here. Accordingly, Allegro has not met
its burden on appeal of demonstrating error.

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 We are inclined to agree with the dissent’s conclusion that “[t]he
production of the contract through a demand for discovery in a lawsuit, in
which the producer has denied the existence of an obligation to turn over
the contract, can hardly be a ‘delivery’ within the contemplation of the
contract, because it is not voluntary.” Problematically, however, that
argument was not presented in Allegro’s initial brief. Allegro conclusively
asserts in its brief that “mere provision of a copy as a part of discovery did
not and could not constitute ‘delivery’ of the Olson Contact under the
ROFR or Florida law.” But it did not provide the voluntariness analysis
that is set forth in the dissent, and we decline to reverse based on an
argument that was not properly briefed. See Polyglycoat Corp., 442 So. 2d
at 960 (“This Court will not depart from its dispassionate role and become
an advocate by second guessing counsel and advancing for him theories
and defenses which counsel either intentionally or unintentionally has
chosen not to mention.”).

III. CONCLUSION

Finding no error with respect to the arguments raised, we affirm the
final judgment of the trial court.

Affirmed.

SINGHAL, RAAG, Associate Judge, concurs.
WARNER, J., dissents with opinion.

WARNER, J., dissenting.

I dissent. The trial court and the majority conclude that the Seller
“delivered” the sales contract to Allegro in compliance with the Right of
First Refusal (ROFR) by producing it in a response to a demand for
discovery and attaching it to a motion filed by an intervenor. I conclude
that as a matter of law these facts cannot constitute delivery. Other facts
show that the Seller affirmatively negated the “delivery” of the contract
through the request for production. Moreover, the Seller breached the
contract earlier by refusing to deliver the Olson Contract to Allegro and
declaring the agreement terminated and counterclaimed to declare the
ROFR terminated. Therefore, Allegro had no duty to perform an already
breached contract.

Because the majority leaves out some salient facts, I restate the
essential facts in this case. As part of the agreement to purchase other
property, the Seller agreed to give Allegro’s predecessor in title a right of
first refusal on additional land owned by the Seller. The parties agreed

12
through a recorded instrument that Allegro would be entitled to a right of
first refusal as to any contract to purchase the property. That right
required the Seller to deliver a copy of any third party sales contract which
the Seller intended to accept. As noted in the majority opinion:

prior to the Seller’s transfer of the real property (the “Refusal
Property”), the Seller shall deliver a copy of the third party sale
contract to Allegro. Allegro “shall have the right to elect, within
ten (10) days after its receipt of the [third party sale contract],
to purchase the Refusal Property at the same price and upon
the same terms and conditions as those contained in the
[third party sale contract] by giving written notice to Seller
within the ten (10) day period.”

Thus, the Seller had a contractual obligation to “deliver” the sales contract
to Allegro. The Seller entered into one contract for sale of the property,
and Allegro exercised its right and entered into a contract with the Seller,
only to withdraw from that contract later. When Allegro discovered that
the Seller had entered into another contract for sale of the property (the
Olsen contract), Allegro requested a copy of the contract in accordance
with the right of first refusal, but the Seller refused, contending that
because of Allegro’s failure to close on the prior contract, the ROFR had
terminated.

Allegro filed suit against the Seller alleging counts for breach of
contract, declaratory judgment, and specific performance. The Seller
answered alleging as affirmative defenses that Allegro had breached the
contract by its bad faith in failing to close on the prior contract of sale and
that as a result the ROFR terminated. 1 The Seller also filed a counterclaim
demanding declaratory judgment that the ROFR was terminated and of no
further force and effect, as well as a claim for slander of title. A copy of
the Olsen contract was not attached to the counterclaim. Allegro moved
to strike many of the Seller’s affirmative defenses.

After filing suit, Allegro filed a request for production on the Seller in
which it demanded copies of all contracts signed after January 1, 2013,
on the property which was the subject of the ROFR. The Seller responded,
as follows:

1 The only issue raised in this appeal is whether the Seller complied with the
ROFR by “delivery” of the Olsen contract to Allegro. Thus, whether the ROFR
terminated is not an issue in this appeal.

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 Documents responsive to this request will be made available
for inspection and copying at the office of the undersigned at
a mutually agreeable date and time. By producing these
documents, [Seller] is not waiving, and expressly reserves, his
right to assert that the subject ROFR has been terminated
either by Allegro's previous exercise of it and then failing to
close thereunder, or its exercise of it in bad faith, or both.
While [Seller] maintains the ROFR is no longer in force or
effect, Allegro no longer possesses any rights thereunder,
and he is not obligated to provide Allegro with a copy of
any contract for the sale of the subject property, he also
understands the breadth and scope of permissible
discovery in Florida and is therefore producing the
requested documents for that sole reason, as set forth
herein.

(Emphasis modified.) 2

Three months later Olsen, the third-party Buyer, filed a motion to
intervene. He alleged a direct interest in the outcome of the proceedings
and attached a copy of the Olsen contract to his motion. Twelve days after
the motion to intervene was filed, the court granted Allegro’s motion to
strike and allowed the Seller to amend his answer, affirmative defenses,
and counterclaim.

Three days after the order granting the motion to strike, the Seller’s
attorney sent documents to Allegro pursuant to the request for production.
These were accompanied by an email in which the attorney stated:

reviewing this file, it appears my office may have never
produced the defendant's documents in response to the
plaintiff’s first request for production. To that end, attached
is another copy of the defendant's written response
(filed10/06/15), along with his documents referenced in
paragraph 1 thereof, bates-stamped [SELLER] 000001-
000034. Should you have any questions, feel free to contact
me.

Included in the documents produced was a copy of the Olson Contract.

2The response to the request for production was attached to the affidavit of Scott
Simon, Esq. filed March 23, 2016, and relied on by the Seller in his motion for
summary judgment.

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 The Seller then filed amended affirmative defenses and a counterclaim
in which he alleged, as he had in the prior answer, that the ROFR had
terminated. But in the amended answer and counterclaim the Seller
alleged that he “provided” Allegro with a copy of the contract, and Allegro
failed to exercise the ROFR. The Seller claimed that Allegro had received
a copy of the Olson Contract when Olson attached it to his motion to
intervene. The Seller claimed that Allegro received another copy of it three
days after the court granted the motion to strike, when the Seller’s attorney
responded to the request for production by including the contract in the
documents produced. Allegro filed an answer denying the same and
alleging as an affirmative defense that the contract was not legally
delivered within the meaning of the contract and that the Seller
anticipatorily breached the contract by refusing to perform under the
ROFR.

The parties each filed motions for summary judgment. The trial court
granted the Seller’s motion. In its order granting summary judgment, the
trial court found that the Seller had:

satisfied the delivery requirement under the ROFR by
providing Allegro with a copy of the Olson Contract, both as
part of its document production and as an exhibit to its
operative pleading.

The fact that [Seller] delivered the Olson Contract to Allegro
during the course of litigation is immaterial, so long as Allegro
received it, which it did.

The court found that to do otherwise would rewrite the contract between
the parties. Because Allegro failed to exercise its right to purchase after
receiving a copy of the contract in discovery, the court concluded that the
Seller had fully complied with the ROFR, entitling the Seller to summary
judgment. Allegro then appealed.

We review a final summary judgment based upon a de novo standard.
As explained in Fini v. Glascoe, 936 So. 2d 52, 54 (Fla. 4th DCA 2006).

The standard of review of an order granting summary
judgment is de novo. Volusia County v. Aberdeen at Ormond
Beach, L.P., 760 So. 2d 126, 130 (Fla.2000). When reviewing
a ruling on summary judgment, an appellate court must
examine the record in the light most favorable to the non-
moving party. Weinstein Design Group, Inc. v. Fielder, 884 So.
2d 990, 997 (Fla. 4th DCA 2004). Summary judgment cannot

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 be granted unless the pleadings, depositions, answers to
interrogatories, and admissions on file together with
affidavits, if any, conclusively show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law. Fla. R. Civ. P.
1.510(c). “[T]he burden is upon the party moving for summary
judgment to show conclusively the complete absence of any
genuine issue of material fact.” Albelo v. S. Bell, 682 So. 2d
1126, 1129 (Fla. 4th DCA 1996).

That means that the appellate court itself reviews the records to determine
whether the party moving for summary judgment has shown that there is
no genuine issue of material fact and is entitled to summary judgment.
Here, the affidavits and pleadings do not show that the Seller was entitled
to summary judgment on the grounds asserted by the Seller.

The trial court erred in concluding that delivery occurred within the
meaning of the ROFR. The contract provided that the Seller shall deliver
a copy of the contract to Allegro. “Delivery” is defined as “[t]he formal
act of voluntarily transferring something; esp., the act of bringing goods,
letters, etc. to a particular person or place.” Black’s Law Dictionary (11th
ed. 2019) (emphasis added). Statutory definitions bear out the
voluntariness element. For instance, under the Uniform Commercial
Code, “delivery” is the “voluntary transfer of possession.” § 671.201(15),
Fla. Stat. (2018). The production of the contract through a demand for
discovery in a lawsuit, in which the producer has denied the existence of
an obligation to turn over the contract, can hardly be a “delivery” within
the contemplation of the contract, because it is not voluntary.
Furthermore, in this case, the production was accompanied by specific
language that the documents were furnished for the sole purpose of
fulfilling its obligation to comply with the production demand. Thus, the
contract was produced by the Seller with the express reservation that
would preclude Allegro from exercising its rights. No “delivery” within the
meaning of the contract occurred.

Further, the court factually erred in determining that the Seller
provided the contract by attaching it to the counterclaim, because the
Seller did not allege he delivered the contract by attaching to the
counterclaim. Instead, the Seller alleged that the contract was “received”
through its attachment to Olson’s motion to intervene and through his
response to the request for the production of documents. Olsen’s motion
cannot constitute “delivery” pursuant to the contract, because the contract

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provides that the Seller deliver the contract, not a third person. 3 The trial
court would be rewriting the contract to find that the contract may be
provided by any third party and still trigger the time period during which
Allegro must exercise its right to purchase with the Seller.

The court wrongly focused on Allegro’s receipt of the contract, rather
than the Seller’s delivery. The means by which Allegro received the
contract is material, because if it is not a voluntary transfer for the
intention of fulfilling the requirement of the ROFR, the time for Allegro’s
acceptance of the contract does not start to run. The Seller never delivered
the contract for the purpose of fulfilling the ROFR. When his attorney
provided the document in discovery, the response expressly noted that it
was solely for the purpose of complying with its obligations under the
Florida Rules of Civil Procedure. The Seller had also filed a counterclaim
seeking to declare the RORF terminated. He had no intent of providing
Allegro with any opportunity to exercise its rights pursuant to the RORF.

Even without the language limiting the production of the contract
through discovery, I would find as a matter of law that required production
of a document in response to a request for production could never satisfy
“delivery” under any contractual provision, because it is not a voluntary
production. The majority’s conclusion that “delivery” can occur in the
middle of a lawsuit simply by production of a contested contract in
discovery or attachment to a counterclaim which alleges that the contract
is of no further effect, creates a dangerous precedent for all litigants. What
the majority opinion requires is that once the document is produced in
litigation, a party must tender performance under the contract, even where
that act would be futile based upon the very contentions of the lawsuit.
Quite simply, this notion is untenable.

Despite the obligation to review the record de novo, the majority does
not perform its obligation to determine whether there is a genuine issue of
material fact as to delivery. Instead, they argue that the issue I address
in my dissent was not raised in the briefs. While the briefs may not have
used the word “voluntary,” there is no question that the issue was raised.
In the Summary of Argument, Allegro argued that the court erred in
finding that the contract had been delivered by production of documents
or attachment to the complaint and further that this was contrary to
Florida law on delivery. In the argument section, the brief states “Allegro

3 This point was raised in Allegro’s memorandum in opposition to the Seller’s
original motion for summary judgment, which was denied. The memorandum
was also included in the appendix filed with Allegro’s initial brief and mentioned
in the brief.

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received the Olson Contract only in this manner, not as a delivery as
required by the express terms of the ROFR.” It also argued extensively
that Pearson had no intent to deliver the contract. In the reply brief Allegro
distinguished Vorpe v. Key Island, Inc., 374 So. 2d 1035 (Fla. 2d DCA
1979), cited by Pearson, noting “The Vorpe court did not opine that
presentation of a copy of a contract in the course of the discovery process
constitutes ‘delivery’ or serves to obviate a prior repudiation by a
contracting party.” It later argued in its reply:

Receipt of the Olson Contract after filing Allegro’s filing of its
action for anticipatory breach does not constitute “delivery”.
Both (i) Pearson’s “attachment” of the Olson Contract to his
Answer, and (ii) Pearson’s including the Olson Contract in his
Discovery Response, occurred in the course of this litigation,
and after Allegro was forced to declare a complete breach by
Pearson under the terms of the ROFO and file suit to protect
its interests. [Citations omitted] Thus, Pearson did not
“deliver” the Olson Contract in accordance with, or for
purposes of, the ROFR. Rather, Pearson was required by
Rules 1.130 and 1.351, Florida Rules of Civil Procedure, to
provide documents on which actions are brought or defenses
made, and in responsive to Allegro’s Request for Production,
all after Allegro was forced to treat the contract as entirely
broken by Pearson, and had to sue.

This is more than sufficient to raise the issue that the production of
documents in the litigation could not constitute delivery. And it mirrors
the very argument I have made in this dissent. The use of the word
“voluntary” is not needed to make the point. I could have left out the
definition of “delivery” as requiring a voluntary act, and the substance of
the argument comports with what has been raised by Allegro in its brief.
It did raise the issue, and the majority simply creates bad law by holding
that a delivery occurred.

Because I would reverse based upon the court’s error in determining
that the contract was delivered to Allegro, the issue of anticipatory breach
need not be addressed. Even so, reliance on the doctrine is not necessary.
As the doctrine is explained in Haelterman v. Haelterman, 846 So. 2d 1229,
1230 (Fla. 2d DCA 2003), “If a party to a contract repudiates a duty before
he has actually breached the contract and before he has received all of the
agreed exchange for it, he has committed an anticipatory breach that gives
rise to a claim for damages.” (Emphasis added.) Here, the Seller had
actually breached his duty under the right of first refusal when he agreed
to sell the property to Olsen but refused to deliver the contract to Allegro

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for its exercise of its option. “If one party to an agreement has breached
the agreement, the other party's failure to continue with the agreement is
not considered a default of the contract.” Jones v. Warmack, 967 So. 2d
400, 402 (Fla. 1st DCA 2007). Because the Seller had breached, Allegro
filed suit for breach of contract, specific performance, and declaratory
judgment. Even if the Seller had delivered the contract to Allegro during
the litigation within the meaning of the contractual provision, Allegro’s
failure to exercise its right of first refusal cannot be considered a default
under the contract because the Seller was already in breach.

Finally, on the issue of whether Allegro was entitled to specific
performance, I do not fault its brief, as the majority does. It succinctly
stated the elements of specific performance and how Allegro had met each
one of them. Allegro was not entitled to summary judgment, however,
because it did not negate all of the affirmative defenses of the Seller.

* * *

Not final until disposition of timely filed motion for rehearing.

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