STEPHEN HESS

v.

PMG-S2 SUNNY ISLES, LLC

Third District Court of Appeal

State of Florida

Opinion filed August 10, 2022. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D20-630 Lower Tribunal No. 18-37446

________________

Stephen Hess, et al.,

Appellants,

vs.

PMG-S² Sunny Isles, LLC,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, William Thomas, Judge. Quintana Law Firm, and J. Luis Quintana; Schlesinger Law Group, and Michael J. Schlesinger; Shutts & Bowen LLP, and Julissa Rodriguez, for appellants. Kluger, Kaplan, Silverman, Katzen & Levine, P.L., Josh M. Rubens and Philippe Lieberman; Samson Appellate Law, and Daniel M. Samson, for appellee. Before FERNANDEZ, C.J., and SCALES and GORDO, JJ. GORDO, J. Stephen Hess, Clearwater Beach Company, LLC, Muse 1901, LLC, Muse 2101, LLC and Muse 2201, LLC appeal a final judgment in favor of PMG-S² Sunny Isles, LLC. We have jurisdiction. Fla. R. App. P. 9.030(c)(1)(A). We affirm the trial court’s order awarding summary judgment in PMG’s favor in all regards. We find, however, the trial court erred in not allowing Hess to amend his pleadings regarding calculation of the return of the deposits and therefore remand with instructions to allow amendment. FACTUAL AND PROCEDURAL BACKGROUND In 2014, Stephen Hess visited Muse, a condominium located in Miami- Dade being developed by PMG, where he reviewed promotional materials and floor plans for prospective units. Hess, and his company Clearwater, subsequently entered into purchase agreements with PMG for the purchase and sale of three pre-construction condominium units at Muse. Hess paid PMG $6.1 million in deposits for the units.

The terms of the agreements barred assignment and amendment without the consent of PMG and a signed written instrument. Per the agreements, if Hess and Clearwater defaulted, PMG was entitled to terminate the agreements and apply a specific damages clause to calculate PMG’s damages. Four subsequent amendments to the agreements were made, and three were sent to Hess and Clearwater. In the first, PMG agreed Hess could assign its interest in the agreements to an affiliated domestic corporate entity. The second detailed modifications regarding an institutional mortgagee. The third only affected future purchasers and was not sent to Hess or Clearwater and the fourth detailed changes to the property management agreement and reflected the unit’s final square footage. Neither Hess nor Clearwater sent any written notice to rescind the agreements due to these amendments.

In May 2018, Hess and Clearwater assigned their “rights, title, interests and obligations” under the agreements to Muse 1901, Muse 2101 and Muse 2201 (the “Muse entities”). Notice of the assignments were sent to PMG. Closing was scheduled for May 31, 2018, but the Muse entities failed to timely close. In late June, PMG furnished the Muse entities with formal written notice of default and terminated the agreements. In November 2018, Hess and Clearwater filed a complaint against PMG for recission pursuant to sections 718.202 and 718.506, Florida Statutes, breach of contract and declaratory judgment challenging the enforceability of the default damages clause in the agreements. Following a motion by PMG, the trial court dismissed the declaratory judgment action without prejudice as the issue was not ripe because the units had not been resold.¹ Hess and Clearwater then filed an amended complaint, including the Muse entities as co-plaintiffs and reasserting the claims for recission and breach of contract only. After initial discovery was conducted, both Hess and PMG filed motions for summary judgment.

In March 2020, rather than proceeding to trial, the trial court heard argument in support of the cross-motions and granted PMG’s motion for summary judgment finding Hess and Clearwater lacked standing and the remaining claims were unsupported. Hess subsequently filed a motion for reconsideration of the entry of summary judgment and requested to amend his complaint to reassert his previous claim regarding the calculation of the

LEGAL ANALYSIS

We review the entry of summary judgment de novo. See Volusia Cnty. v. Aberdeen at Ormand Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).2 We review for abuse of discretion a trial court’s denial of leave to amend a pleading. See Jain v. Buchanan Ingersoll & Rooney PC, 322 So. 3d 1201, 1204 (Fla. 3d DCA 2021), reh’g denied (July 27, 2021). We affirm without further discussion the trial court’s ruling that PMG was properly entitled to summary judgment as a matter of law on the issues raised. We reverse, however, as Hess should have been allowed to amend his pleadings. Florida Rule of Civil Procedure 1.190(a) requires courts to allow amendment of pleadings which “shall be given freely when justice so requires.” This Court has considered some exceptions to this rule, such as abuse of the privilege to amend, futility of the proposed amendment and