Hahamovitch v. Delray Property Investments, Inc.

165 So. 3d 676, 2015 Fla. App. LEXIS 5504, 2015 WL 1652713
CourtDistrict Court of Appeal of Florida
DecidedApril 15, 2015
DocketNo. 4D13-3510
StatusPublished
Cited by2 cases

This text of 165 So. 3d 676 (Hahamovitch v. Delray Property Investments, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hahamovitch v. Delray Property Investments, Inc., 165 So. 3d 676, 2015 Fla. App. LEXIS 5504, 2015 WL 1652713 (Fla. Ct. App. 2015).

Opinion

WARNER, J.

In this marathon litigation over agreements between appellants and appellees concerning the ownership in two commercial shopping centers, appellants challenge the final judgment awarding damages against them based upon fraud. They also contest the court’s declaration of their rights under the profit participation agreements between the parties. First, appellants claim that the fraud claim should have been barred by a merger clause in the profit participation agreements. Second, they contend that the trial court erred in finding that the contract did not require the appellees to furnish financial information to the appellants for the purpose of exercising their contractual right to purchase the properties and that appellants could not exercise their right to purchase retroactively. As to the first claim, the merger clause would not bar a cause of action for fraud, and in this case the fraud involved the closing of the property and not the subsequent participation interests to which the merger clause applied. As to the second claim, we agree with the trial court that appellants are not entitled to the requested relief of retroactively allowing them to exercise their rights to purchase. We affirm.

Facts

This case has a complex twenty-year history arising out of the sale of two commercial properties, Plaza La Mer in Juno Beach and South Square in Brooksville, Florida.1 Harry Hahamovitch and his associates entered into contracts to purchase the two properties through two affiliated corporations, Plaza La Mer, Inc. (“PLM”) and South Square Development, Inc. (“SDI”). To complete the purchase, however, Hahamovitch and his associates needed additional investors. They approached Hatim Hashwani to secure additional investors to provide financing. The investor whom Hashwani found did not want to enter into a partnership directly with Hahamovitch and his partners. Instead, the investor created Delray Proper[679]*679ty Investments, Inc. (“Delray”) and SOSQ Property Investments, Inc. (“SOSQ”) to be the assignees of the properties’ purchase contracts and then to take title.

The parties signed Preliminary Participation Agreements on each of the shopping plazas to establish their rights and responsibilities for the completion of the purchase. Pursuant to these agreements, Hahamovitch agreed to assign his contracts to purchase the two properties to Delray and to complete specified “confirmations” prior to closing. One of the provisions dealt with the payment of brokerage commissions. Horizon Equities Group, Inc., a real estate brokerage firm, was entitled to a $144,000 commission on the closing of the sale of Plaza La Mer, but Hashwani’s investor wanted to confirm that Hahamovitch would not receive any part of this commission. In the Preliminary Participation Agreements, the parties included a provision conditioning the closing on a confirmation that Hahamovitch would not receive .a commission:

Written confirmation from Horizon Equities Group, Inc., that the commission due it (the “Horizon Commission”) from the Purchaser under the Agreement is $144,000. By executing this instrument on behalf of Assignor, Harry H. Haha-movitch represents and warrants unto Assignee [Delray] that neither he nor any other entity in which he has an equity interest (including without limitation, Assignor [Plaza La Mer]) is receiving any portion of .the Horizon Commission.

The preliminary agreement also obligated the parties to enter into a profit participation agreement.

The evidence in the record shows that the purchase price for Plaza La Mer was $3.6 million, and Delray executed a $2.5 million mortgage. It also paid considerable costs to close. The purchase price of South Square was.less, but also included cash plus a $2 million mortgage. After the closing on the two properties, the parties entered into nearly identical Profit Participation Agreements (“PPAs”) for each shopping plaza. Delray was designated as the owner of Plaza La Mer, and SOSQ was designated as the owner of South Square. PLM and SDI, the corporations owned by the Hahamovitch associates, along with Hashwani, were designated as “participants.” The agreements recognized that the participants were instrumental in securing the property for the owners, and the owners intended to provide for the participants to benefit from the shopping centers. Rather than give the participants equity grants, the agreement provided that each participant would receive a portion of net cash flow and net proceeds after reimbursement of the owner’s outstanding capital including a compounded return on investment. The specific terms of the PPAs are most relevant to the second issue on appeal and will be discussed later in' this opinion.

In addition, HHH Management, a corporation owned by Hahamovitch, became the manager of both shopping centers, responsible for the day-to-day operations. The Management Agreements for the properties required HHH Management to account to the owners for the income, expenses, and distributions on each property. The manager kept all the books and records of the shopping centers and was required to make quarterly reports to the owners of income, expenses, and distributions.

A year and a half later, the owners discovered that Hahamovitch had received a commission on the sale in violation of the provisions of the preliminary agreement. They terminated HHH Management as manager of the-properties and filed suit in 1995 against Hahamovitch, PLM, and others connected with the Plaza La Mer pur[680]*680chase, because of the receipt of a commission by Hahamovitch. They alleged fraud and sought damages together with rescission of both Profit Sharing Agreements because of the misrepresentations of Ha-hamovitch.

The defendants responded, and PLM and SDI filed a counterclaim against Del-ray and SOSQ, respectively, claiming the right to an accounting to determine what distributions of profits were owed to those companies. In 1998 they filed an amended counterclaim for declaratory judgment in which they alleged a need for the court to construe the PPAs. They contended that they were entitled to information on net cash flow, net proceeds, or rent rolls so that they could determine whether to exercise option rights under the PPAs to extend a purchase offer to the owners for the properties. They alleged that Delray refused to provide the information which in good faith it should be required to give to them. They requested the court to declare the validity of the PPA and the rights of the parties to the contract. As well, they requested “incidental damages,” costs, and attorney’s fees.

Delray’s claims of fraud and breach of contract went to trial in 2003. An employee of Horizon Equities, the purported broker, testified that neither he nor Horizon was involved in the real estate transaction but were given $44,000 of the $144,000 commission to offset monies that Hahamo-vitch owned him for other services. He explained that none of the money he received had anything to do with the Plaza La Mer sales commission. He testified that he was directed (by Hahamovitch or his associate) to write a check for $100,000 to a company called Rodan Development to repay monies Hahamovitch had borrowed from Rodan in the initial stages of contracting to purchase Plaza La Mer. Ha-hamovitch gave contrary testimony that Horizon earned the commission and that he was merely a “clearinghouse” for the funds but didn’t receive a commission.

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Related

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Cite This Page — Counsel Stack

Bluebook (online)
165 So. 3d 676, 2015 Fla. App. LEXIS 5504, 2015 WL 1652713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hahamovitch-v-delray-property-investments-inc-fladistctapp-2015.