Opinion
No. 1D21-2663
06-29-2022
ROCKWELL AT AMELIA PASSAGE, LLC, Appellant, v. Louise WILLIAMS, an individual, Dwight Griffis, an individual, and Richard Griffis, an individual, Appellees.
C. Ryan Maloney and JoAnne Eichelberger of Jimerson Birr, P.A., Jacksonville, for Appellant. Clyde W. Davis of Davis & Steger, PLLC, Fernandina Beach, for Appellees.
C. Ryan Maloney and JoAnne Eichelberger of Jimerson Birr, P.A., Jacksonville, for Appellant.
Clyde W. Davis of Davis & Steger, PLLC, Fernandina Beach, for Appellees.
Bilbrey, J.
Rockwell at Amelia Passage, LLC appeals the trial court's summary judgment granting declaratory relief and declaring that the force majeure clause in the parties’ vacant land sale contract did not apply to the facts of the case. Because the trial court was correct that the force majeure clause did not apply, we affirm.
Appellees were the Sellers in the contract for the sale of an undeveloped 154-acre parcel in Nassau County, Florida. The contract was executed by the Appellees and the Apex Group, LLC as Buyer in September 2017. Under the contract, Appellees would deliver the property "as is," but the Buyer had the option of conducting a pre-purchase feasibility study to determine whether the parcel suited the Buyer's residential real estate development plans under growth management regulations, for rezoning eligibility, and such. If the Buyer determined that the property was not acceptable during the feasibility study period, the Buyer had to notify Appellees before the expiration date of the feasibility study period or accept the property "as is." The sale was not contingent upon any development approval or rezoning.
Paragraph 8 of the contract described Buyer's discretionary feasibility study and provided in part:
Before expiration of the Feasibility Study Period, Buyer must deliver written notice to Seller of Buyer's determination of whether or not the Property is acceptable. Buyer's failure to comply with this notice requirement will constitute acceptance of the Property as suitable for Buyer's intended use in its "as is" condition. If the Property is unacceptable to Buyer and written notice of this fact is timely delivered to the Seller , this contract will be deemed terminated, and Buyer's deposit(s) will be returned.
Paragraph 12 of the contract provided:
12. Force Majeure: Seller or Buyer will not be required to perform any obligation under this contract or be liable to each other for damages so long as the performance or non-performance of the obligation is delayed, caused, or prevented by an act of God or force majeure. An "act of God" or "force majeure" is defined as hurricanes, earthquakes, floods, fire, unusual transportation delays, wars, insurrections, and any other cause not reasonably within the control of the Seller or Buyer and which by the exercise of due diligence the non-performing party is unable in whole or in part to prevent or overcome. All time periods, including Closing Date, will be extended for the period that the act of God or force majeure is in place. However, in the event that such act of God or force majeure event continues beyond 30 days, either party may terminate this contract by delivering written notice to the other; and Buyer's deposit(s) will be returned.
The original deadline for closing the sale under the contract was in April 2018. The parties agreed, in paragraph 10, that "time is of the essence in this contract." Despite this, the parties agreed on several extensions through addenda to the contract.
Before the initial deadline for closing was reached, the parties executed an addendum to the contract, extending the deadline for closing. In another addendum, the contract was assigned with Sellers’ consent from Apex Group to Rockwell as the Buyer. A subsequent addendum again extended the period for Rockwell's feasibility study and closing. That addendum also provided, "Buyer is authorized to seek, and the Seller is obligated to reasonably assist, in having the Property rezoned and sub-divided into a residential sub-division. However, Buyer agrees that such rezoning cannot be made effective until after the Closing Date."
In December 2019, deadlines were extended yet again by the fifth addendum, requiring completion of Rockwell's feasibility study by April 30, 2020, and closing by May 31, 2020. On December 26, 2019, Rockwell applied for a Planned Unit Development (PUD) with the Nassau County Department of Planning and Economic Development (the Department). The Department notified Rockwell that the PUD application was complete on March 2, 2020. But in the notice, Rockwell was requested to provide any draft concurrency agreements between it and the Nassau County School Board. "Provision for and adequacy of future public education" had to be considered in approving a PUD application. Nassau Cnty., Fla., Land Dev. Code Art. 25, § 25.05(C)(2). The spread of COVID-19 was well known when, on March 1, 2020, Florida's Governor issued a directive to the Surgeon General to declare a public health emergency due to the ongoing pandemic. On March 9, 2020, the Governor again declared an emergency in more dire terms, allocating additional resources. Consequently, as of March 24, 2020, the Department cancelled its meetings to avoid public gatherings.
The trial court's order details other ways the public was aware of the COVID-19 pandemic as of March 2020.
The sixth and final addendum to the contract was signed April 29, 2020. The sixth addendum extended Rockwell's feasibility study period to October 31, 2020, and extended the deadline for closing to November 30, 2020. The parties do not contend that they were unaware of the COVID pandemic or the meeting cancellations by the Department when they executed the sixth addendum on April 30, 2020. The sixth addendum did not refer to the pandemic but specified that Sellers "will not agree to any further extensions of this Contract."
The Department did not resume in-person meetings until July 2020. Later, two meetings of the Department were cancelled. No agreement on school concurrency was reached, so Rockwell withdrew its PUD application in August 2020. Rockwell instead applied to rezone the subject property without a PUD. The time allotted to agree on school concurrency expired in September 2020. By letter dated October 30, 2020, one day before the deadline to complete any feasibility study, Rockwell notified Appellees that the COVID pandemic had delayed Rockwell's ability to obtain regulatory approval of its planned development. Rockwell did not deem the property unacceptable "as is" or seek to terminate the contract. Instead, Rockwell requested Appellees to recognize an "automatic extension" of the contract deadlines under the force majeure clause.
On November 5, 2020, Appellees rejected Rockwell's’ proposed extension and asserted that the force majeure clause did not apply. Appellees expressed their readiness to close the sale on or before the deadline of November 30, 2020. Even so, closing did not occur by November 30, 2020. On that date, Rockwell filed its complaint for declaratory judgment in the circuit court. The complaint alleged that "[s]uccessful development of the Project will require a re-zoning of the Property ... using the Planned Unit Development (PUD)...."
After answering the complaint, Appellees moved for summary judgment based on the undisputed facts and unambiguous contract language. The trial court granted Appellees’ motion and declared that paragraph 12 of the contract, the force majeure clause, did not apply "to the factual circumstances of Plaintiff and Defendants." The court noted that the PUD application was withdrawn before the feasibility study period had expired. Accordingly, the court found that Rockwell was not entitled to an extension of time to close on the sale and that Rockwell had failed to close by the contract deadline on November 30, 2020. The court ordered Rockwell's deposits released to the Appellees. It also ordered the lis pendens recorded on the property by Rockwell dissolved.
Rockwell appealed the court's final summary judgment for Appellees. Our review is de novo. See First Call 24/7, Inc. v. Citizens Prop. Ins. Corp ., 333 So 3d 1180, 1182 (Fla. 1st DCA 2022) (quoting Rose v. Steigleman , 32 So. 3d 644, 654 (Fla. 1st DCA 2010) ) ("A trial court's interpretation of a contract is a matter of law and is thus subject to de novo review."); see also Maronda Homes, Inc. of Fla. v. Lakeview Rsrv. Homeowners Ass'n, Inc ., 127 So. 3d 1258, 1268 (Fla. 2013) (applying a de novo standard of review to a grant of summary judgment).
We find no error in the trial court's assessment of the undisputed facts and reading of the clear terms of the contract. The parties were well aware of the pandemic on April 29, 2020, when they executed the sixth addendum to the contract. They remained aware of the known hazard for the next six months, as the deadline approached for Rockwell to notify Appellees that the property was unacceptable. Rockwell was not rendered unable to notify Appellees of such unacceptability. And it was not prevented from closing by November 30, 2020, by the COVID-19 public health emergency which began in March 2020 or by the Department's cancellation of meetings between March 24 and July 7, 2020.
More importantly, the COVID-19 pandemic did not contribute to Rockwell's performance or non-performance under the contract being "delayed, caused, or prevented." The contract was not contingent on the property being rezoned or a PUD being approved. In fact, per the fourth addendum, rezoning could not occur until after closing. The undisputed evidence shows that it was Rockwell's failure to reach an agreement on school concurrency, not a delay caused by COVID-19, that caused Rockwell to withdraw its PUD application and begin rezoning proceedings. Rockwell asserted in its complaint that a PUD would be necessary for the planned development to be successful, yet before the end of the feasibility study period it had withdrawn its PUD application. Appellees remained ready and able to close, and Rockwell was not prevented by the pandemic from notifying them that the property was unacceptable "as is" and terminating the contract or closing the sale by the deadline.
The force majeure clause here excused performance of the contract for events "not reasonably within the control of the Seller or Buyer and which by the exercise of due diligence the nonperforming party is unable in whole or in part to prevent or overcome." A force majeure clause can provide for contingencies broader than the common law contract doctrine of impossibility of performance. See Home Devco/Tivoli Isles LLC v. Silver , 26 So. 3d 718, 722 (Fla. 4th DCA 2010). Even so, it "is not an opt-out provision; it is limited in scope." Stein v. Paradigm Mirasol, LLC , 586 F.3d 849, 858 (11th Cir. 2009) (citations omitted). The force majeure clause does not apply to matters, like the PUD application, within Rockwell's control. See Home Devco/Tivoli Isles LLC , 26 So. 3d at 722–23 ; Stein , 586 F.3d at 858.
Rockwell fails to show reversible error in the trial court's summary final judgment for Appellees and declaring the force majeure clause inapplicable to these facts.
AFFIRMED .
Lewis and Jay, JJ., concur.