Data

Date:: 18-01-2017
Country:: USA
Number:: 09-043833 CACE (07)
Court:: U.S. District Court, Florida
Parties:: Styles v. Movie Star Muscle Cars, Inc. et al.

Keywords

BUYER'S RIGHT TO REQUIRE SPECIFIC PERFORMANCE (ART. 46 CISG) - AVAILABILITY OF JUDGEMENT FOR SPECIFIC PERFORMANCE DETERMINED BY DOMESTIC LAW (ART. 28 CISG) - JUDGMENT FOR SPECIFIC PERFORMANCE ENTERED UNDER FLORIDA LAW

Abstract

A U.S. buyer bought a vintage car from a Canadian seller. Although the buyer paid the full agreed price, the seller refused to deliver the car. The buyer sued the seller before the U.S. Court seeking for specific performance.

The Court ruled that the contract at stake was governed by CISG. However, relying on the wording of Art. 28 CISG, the Court pointed out that consideration of Florida law was also necessary to assess whether specific performance was an appropriate remedy in the present case.

The Court finally granted the buyer specific performance under the Convention and Florida State law. In order to reach this conclusion, the Court considered, in particular, that under Florida State law specific performance is a discretionary remedy that can be accorded where the property involved in the contract is, as in the case at hand, of a unique character and value, such as an antique.

Fulltext

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Opinion

Order on Plaintiff’s Motion for Partial Summary Judgment on Counts I and V of the Fourth Amended Complaint
THIS CAUSE came before the court on Plaintiff’s Motion for Partial Summary Judgment on Counts I and V of the Fourth Amended Complaint. The court, having considered the motion, response, and summary judgment evidence, having heard arguments of counsel, and being otherwise duly advised in the premises, rules as follows:
The instant action arises from a dispute concerning the purchase and sale of a 1969 1/2 A12 Superbee («Vehicle»). On May 20, 2015, this Court granted plaintiff, Brian Styles («Plaintiff» or «Styles»), leave to file a fourth amended complaint. In the fourth amended complaint, Styles asserts the following five causes of action against defendants, Movie Star Musclecars, Inc. («MSMC»), Gary Pronman («G. Pronman»), and Dan Pronman («D. Pronman») (collectively «Pronmans»): (1) breach of contract (count I); (2) civil theft (count II); (3) fraud (count
III); (4) unjust enrichment (count IV); and (5) specific performance (count V). On May 20, 2015, MSMC and the Pronmans separately filed their answers and affirmative defenses. Thereafter, on June 4, 2015, Styles filed his reply to the affirmative defenses.
On August 15, 2016, Plaintiff filed the instant motion for partial summary judgment as to count I and count V of his fourth amended complaint. Specifically, Plaintiff seeks the remedy of specific performance and requests the court order the Defendants to: (1) provide Plaintiff with unimpeded access to pick up the Vehicle; (2) provide Plaintiff with the original broadcast sheet for the Vehicle, along with any other original paperwork that is associated with the Vehicle; and (3) produce to Plaintiff the original registration of the Vehicle either endorsed in
blank, or to register the Vehicle and sign it over Plaintiff as the purchaser. On November 26, 2016, Defendants filed a response in opposition. A hearing was held before the court on November 30, 2016. Thereafter, on December 7, 2016, Defendants filed a supplemental memorandum in opposition to Plaintiff’s motion for partial summary judgment.
Summary judgment is appropriate «if the pleadings and summary judgment evidence on file 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). The party moving for summary judgment has the burden of showing the absence of a genuine issue of fact. All inferences must be drawn from the proof in favor of the party opposing the motion. Liberty Mutual Ins. Co. v. Stuckey, 220 So. 2d 421 (Fla. 4th DCA 1969). It is well settled that summary judgment should be sparingly granted, and if there are issues of fact and the slightest doubt remains, summary judgment cannot be granted. See Campbell v. Anheuser-Busch, Inc., 265 So. 2d 557 (Fla. 1st DCA 1972). The burden to prove the nonexistence of genuine triable issues is on the moving party, and the burden does not shift to
the opposing party until the movant has successfully met his burden. Holl v. Talcott, 191 So. 2d 40 (Fla. 1966). Doubts and inferences as to the existence or nonexistence of material facts must be resolved against the movant. Id.
If the moving party meets this initial burden, summary judgment is appropriate as a matter of law against the nonmoving party if they fail to make a showing sufficient to establish the existence of an essential element of that party’s case. DeMesne v. Stephenson, 498 So. 2d 673 (Fla. 1st DCA 1986). The evidence presented by the nonmoving party is to be believed and all reasonable inferences are to be drawn in his favor. Holl, 191 So. 2d at 43. Moreover, [w]hen a party raises affirmative defenses, [as the Defendant has,] a summary judgment should not be granted where there are issues of fact raised by the affirmative defenses which have not been effectively factually challenged and refuted. Thus, in order for a plaintiff to obtain summary judgment when the defendant asserts affirmative defenses, the plaintiff must either disprove those defenses by evidence or establish
the legal insufficiency of the defenses. In such instances, the burden is on the plaintiff, as the moving party, to demonstrate that the defendant could not prevail.
E. Qualcom Corp. v. Global Commerce Ctr. Ass ‘n, Inc., 59 So. 3d 347, 352 (Fla. 4th DCA 2011) (quoting Alejandre v. Deutsche Bank Trust Co. Americas, 44 So. 3d 1288, 1289 (Fla. 4th DCA 2010)).
As an initial matter, the court notes that the parties have disputed the applicable law during the course of the instant litigation. In this regard, Defendants have maintained that the applicable law is the United Nations Convention on Contracts for the International Sale of Goods («CISG» or «Convention»). Plaintiff has opposed the application of the CISG, and has argued that Florida’s Uniform Commercial Code («UCC») applies. However, for purposes of the instant motion for partial summary judgment, Plaintiff does not contest the application the CISG, but relies on the Convention in support of his argument for specific performance. After
reviewing the CISG, the court determines that consideration of Florida law is also required.
Specifically, Article 28 of the CISG provides: "If, in accordance with the provisions of this Convention, one party is entitled to require performance of any obligation by the other party, a court is not bound to enter a judgement for specific performance unless the court would do so under its own law in respect of similar contracts of sale not governed by this Convention".

After a careful review, the court determines that Plaintiff is entitled to specific performance under the CISG, and Florida’s UCC and common law. Under Florida law, «[t]o establish a breach of contract, a party must show the existence of a contract, a breach thereof, and damages.» Miller v. Nifakos, 655 So. 2d 192, 193 (Fla. 4th DCA
1995) (citing Knowles v. C.I.T. Corp., 346 So. 2d 1042 (Fla. 1st DCA 1977)). In the instant action, the summary judgment evidence demonstrates that Defendants agreed to sell and Plaintiff agreed to purchase the Vehicle for $84,000.00. Plaintiff was instructed to wire the purchase price to a Canadian bank account owned by Defendant MSMC. The summary judgment evidence further reveals, and it is undisputed, that Plaintiff complied with this obligation and wired the full purchase price to the Defendants. However, the summary judgment evidence demonstrates that immediately after the wire transfer, issues arose as to the location and
delivery of the Vehicle. Notwithstanding Plaintiff’s compliance with his obligation to tender the purchase price, it is undisputed that as a result of the delivery dispute, the Vehicle remains in Defendants’ possession.
The court notes that the subject agreement between the parties does not provide a location where the Vehicle was to be delivered. As to this issue, the CISG and Florida’s UCC are instructive.
Under the CISG, «[i]f the seller is not bound to deliver the goods at any other particular place, his obligation to deliver consists: … (c) … in placing the goods at the buyer’s disposal at the place where the seller had his place of business at the time of the conclusion of the contract.»
CISG, Art. 31. This is consistent with Florida’s UCC, which provides, in pertinent part:
Unless otherwise agreed:
(1) The place for delivery of goods is the seller’s place of business or if the seller has
none his or her residence; but
(2) In a contract for sale of identified goods which to the knowledge of the parties at
the time of contracting are in some other place, that place is the place for their
delivery.
§ 672.308 (1)–(2), Fla. Stat.
The summary judgment evidence demonstrates that upon signing the agreement and tendering the purchase price to the Defendants, Plaintiff inquired as to the location of the Vehicle. However, the summary judgment evidence reveals that the Defendants did not provide Plaintiff with an exact location of the Vehicle. Rather, in response to Plaintiff’s inquiry, Defendants responded that the Vehicle was in Canada, and in response to a subsequent inquiry, Defendants stated the Vehicle was «20 minutes from Toronto.»

After a careful review of the summary judgment evidence, specifically, Plaintiff’s tender of the purchase price and the antique nature of the Vehicle, the court determines that specific performance is warranted. The CISG specifically allows for the remedy of specific performance.
See CISG, Art. 46(1) («The buyer may require performance by the seller of his obligations unless the buyer has resorted to a remedy which is inconsistent with this requirement.»). Florida’s UCC also permits specific performance. Specifically, section 672.716, Florida Statutes, provides, in pertinent part:
(1) Specific performance may be decreed where the goods are unique or in other proper circumstances.
(2) The decree for specific performance may include such terms and conditions as to payment of the price, damages, or other relief as the court may deem just.
§ 672.716 (1), (2), Fla. Stat.
Additionally, under Florida law, [a] decree of specific performance is an equitable remedy «not granted as a matter of right or grace but as a matter of sound judicial discretion» governed by legal and equitable principles. Humphrys v. Jarrell, 104 So. 2d 404, 410 (Fla. 2d DCA 1958). Specific performance shall only be granted when 1) the plaintiff is clearly entitled to it, 2) there is no adequate remedy at law, and 3) the judge believes that justice requires it. Mrahunec v. Fausti, 385 Pa. 64, 121 A.2d 878, 880 (1956). Castigliano v. O’Connor, 911 So. 2d 145, 148 (Fla. 3d DCA 2005). Furthermore, «[i]t is a well established legal principle that a court of equity will grant specific performance of a contract involving personal property when the property is of a unique character and value, such as an antique, and there is no adequate remedy at law.» Mangus v. Porter, 276 So. 2d 250, 251 n. 1 (Fla. 3d DCA 1973) (citations omitted). In Mangus, the Third District Court of Appeal reversed the trial court’s denial of the plaintiff’s request for specific performance as to an agreement involving an antique automobile. See id. 276 So. 2d at 251-252. Considering the unique and antique nature of the Vehicle, and the undisputed fact that Plaintiff paid the full purchase price for the Vehicle, the court determines that specific performance is warranted. Therefore, Plaintiff’s motion for partial summary judgment is granted as to the issue of specific performance.
Notwithstanding the above determination, the court notes that issues remain as to what costs, if any, the Defendants incurred as a result of the parties’ dispute over the delivery of the Vehicle and which may require reimbursement by Plaintiff. As a result, as requested by the Plaintiff, the court determines that Plaintiff’s entitlement to specific performance is contingent on the posting of a monetary bond by the Plaintiff. The court determines, however, that the summary judgment evidence is insufficient to determine the appropriate amount of the bond. See Hewitt, Coleman & Assocs. v. Lymas, 460 So. 2d 467, 468 (Fla. 4th DCA) («This
court has clearly and unequivocally stated that argument of counsel does not constitute evidence.»).
Therefore, the parties shall confer as to the amount of the bond to be posted by
Plaintiff. If the parties cannot agree as to the amount of the bond, the court will hold an expedited
evidentiary hearing on this issue.

Accordingly, it is hereby:
ORDERED that Plaintiff’s Motion for Partial Summary Judgment on Counts I and V of the Fourth Amended Complaint is GRANTED as to count V (specific performance) and DEFERRED as to count I (breach of contract).
IT IS FURTHER ORDERED that within twenty (20) days of the date of this Order, Defendants, Movie Star Musclecars, Inc., Dan Pronman, and Gary Pronman shall make all necessary arrangements to facilitate the transfer of the subject Vehicle to the Plaintiff, including:
(1) providing unimpeded access to the Vehicle for Plaintiff to retrieve the Vehicle; (2) providing Plaintiff with the original broadcast sheet for the Vehicle, along with any other original paperwork that is associated with the Vehicle; (3) producing to Plaintiff the original registration either endorsed in blank, or signing over the vehicle registration to Plaintiff as the purchaser; (4) ensuring title to the subject Vehicle is transferred to Plaintiff as purchaser; and (5) completing any and all documents that are required either under Canadian or United States
law to facilitate the transfer of title and delivery of the Vehicle to Plaintiff. The transfer and change of title from the Defendants to the Plaintiff, and delivery of the Vehicle to the Plaintiff are both contingent on the posting of a monetary bond in an amount to be agreed-upon by the parties, or as determined by the court following an evidentiary hearing upon the parties’ request. The court retains jurisdiction to enforce this Order.}}

Source

Original in English:
- available at the University of Pace Law website, https://iicl.law.pace.edu/cisg/}}