EUGENE E. MORI

v.

FORTUNE CAPITAL PARTNERS, INC.

Third District Court of Appeal

State of Florida

Opinion filed March 10, 2021. Not final until disposition of timely filed motion for rehearing.

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Nos. 3D19-1194, 3D19-1359 Lower Tribunal No. 17-22822

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Eugene E. Mori,

Appellant,

vs.

Fortune Capital Partners, Inc.,

Appellee,

Appeals from the Circuit Court for Miami-Dade County, Reemberto Diaz, Judge. Piedra & Associates, P.A., and Jorge L. Piedra, for appellant. Shutts & Bowen LLP, and Steven M. Ebner, and Julissa Rodriguez, and Jamie B. Wasserman, for appellee. Before SCALES, LINDSEY, and LOBREE, JJ. LINDSEY, J.

These consolidated appeals stem from a failed real estate transaction

involving four parcels of land and two separate contracts. The court below

entered final summary judgment in favor of Appellee Fortune Capital

Partners, Inc., and ordered Appellant Eugene Mori to specifically perform by

selling two of the four parcels of land for a reduced price. The court also

entered an order awarding attorney’s fees and costs in favor of Fortune.¹

Because the trial court erred in ordering specific performance, we reverse

and remand for further proceedings.

In May 2017, Mori entered into two contracts to sell four parcels of land

to Fortune. In June 2017, Fortune notified Mori of title defects with respect

to two of the four parcels.2 Fortune then filed the underlying action for

specific performance and moved for summary judgment.3 The trial court

ultimately granted final summary judgment and ordered that the two parcels

without the alleged title defects be sold with a reduction in price.

“The purpose of specific performance is to compel a party to do what

it agreed to do pursuant to a contract.” Anthony James Dev., Inc. v. Balboa

St. Beach Club, Inc., 875 So. 2d 696, 698 (Fla. 4th DCA 2004). Here, the

remedies available in the event of title defects were limited by the terms of

both contracts, which specifically provide, in pertinent part, as follows:

If the defects are not cured within the Curative Period, Buyer will have 10 days from receipt of notice of Seller’s inability to cure the defects to elect whether to terminate this Contract or accept title subject to existing defects and close the transaction without reduction in purchase price. In other words, if any title defects were not cured, Fortune could either (1)

terminate the contracts or (2) accept title subject to existing defects and close

the transaction without reduction in purchase price.⁴

As the Fourth District explained in Taines v. Berenson, 659 So. 2d

1276, 1277 (Fla. 4th DCA 1995), a case involving a similar contractual

provision, the trial court erred in awarding specific performance with an

abatement in price because the buyer’s remedies “were limited by the terms

of the contract itself . . . . Here, despite having options (1) and (2), as

indicated above, available to him, [Buyer] exercised neither. He neither

agreed to accept a deed for title as it existed, nor did he request a refund

and cancellation of the contract.” The same is true for Fortune. We therefore

reverse the final judgment ordering specific performance with an abatement

and remand for further proceedings consistent with this opinion.

Reversed and remanded.⁵