Overseas Fuels, LLC v. Key Largo Petro, LLC

Opinion

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

OVERSEAS FUELS, LLC,

Appellant,

v.

KEY LARGO PETRO, LLC,

Appellee.

No. 4D2025-2445

[August 26, 2026]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Fabienne Elizabeth Fahnestock, Judge; L.T. Case No. 062021CA020036AXXXCE.

David G. Hutchison and Matthew K. Hardee of Hutchinson & Tubiana, PLLC, Key Largo, for appellant.

David A. Freedman, Kendall Coffey and Scott Hiaasen of Coffey Burlington, P.L., Miami, for appellee.

COATES, JR., HOWARD K., Associate Judge.

Overseas Fuels, LLC (“Overseas Fuels”) appeals entry of final summary judgment in favor of Key Largo Petro, LLC (“Key Largo Petro”).

Overseas Fuels primarily raises three arguments: (1) the trial court erred in finding no assignment of the relevant lease occurred; (2) the doctrine of equitable waiver applied to excuse the non-payment of the $40,000 option fee at issue; and (3) a genuine issue of material fact exists as to whether Largo Fuels, LLC (“Largo Fuels”), a nonparty to this action, was dissolved at the inception of Overseas Fuels’ lease. We affirm on all three arguments.

Facts:

In 2019, Largo Fuels leased real property from Key Largo Petro (the “Largo Fuels Lease”). The Largo Fuels Lease contained a purchase option conditioned on payment of a “non-refundable” $40,000 option fee. Largo Fuels paid the option fee, but a contract was never submitted for purchase

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of the property with Largo Fuels listed as the proposed purchaser.

In August 2019, Largo Fuels’ original owner, Isaias “Ray” Ochoa, sold his remaining interest in Largo Fuels resulting in ownership of Largo Fuels being 50.5% in Cesar Coello and 49.5% in Deyanira Gutierrez. By October 2019, Gutierrez had learned that Largo Fuels had bad credit because Ochoa, who had been the president, had significant debts with vendors, the Florida lottery, and the IRS. As a result, Gutierrez created Overseas Fuels and became its sole owner, president, and manager. The Florida Secretary of State eventually administratively dissolved Largo Fuels in September 2020.

In November 2019, Gutierrez reached out to Key Largo Petro’s principal and requested a new lease. Key Largo Petro and Overseas Fuels executed a new lease (the “Overseas Fuels Lease”), effective October 1, 2019, with terms virtually identical to the Largo Fuels Lease. The Overseas Fuels Lease also included an exclusive right to purchase and, among other things, required Overseas Fuels to pay a non-refundable $40,000 option fee to exercise the option to purchase. Notably, the Largo Fuels Lease had expressly provided that Largo Fuels shall not assign any rights under that lease without Key Largo Petro’s prior written consent.

In February 2021, Overseas Fuels tendered a purchase and sale contract to Key Largo Petro, purporting to exercise the purchase option under the Overseas Fuels Lease and crediting itself the $40,000 option payment that Largo Fuels had previously made. Key Largo Petro struck the $40,000 credit that was originally paid by Largo Fuels, struck through the related provisions in the February 2021 Agreement, signed the agreement, and returned the modified, executed agreement to Overseas Fuels. Although a closing on the purchase and sale contract was scheduled, the closing was never completed and subsequent efforts by Overseas Fuels to resurrect the purchase and sale agreement and exercise the purchase option under the Overseas Fuels Lease failed.

Overseas Fuels brought the underlying action against Key Largo Petro, arguing that Key Largo Petro breached its contract with Overseas Fuels. Overseas Fuels sought specific performance of the Overseas Fuels Lease and purchase option. Key Largo Petro moved for summary judgment, arguing that Overseas Fuels’ failure to close on the purchase option extinguished the option, Overseas Fuels failed to pay the $40,000 purchase option fee, and no assignment to Overseas Fuels of the Largo Fuels Lease had occurred. Following a hearing, the trial court granted Key Largo Petro’s motion for summary judgment and entered final judgment for Key Largo Petro. Thereafter, the trial court denied Overseas Fuels’

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motion for rehearing. This appeal follows.

Standard of Review:

“A trial court’s ruling on a motion for summary judgment is subject to a de novo standard of review.” Olsen v. First Team Ford, Ltd., 359 So. 3d 873, 876 (Fla. 5th DCA 2023) (citing Baxter v. Northrup, 128 So. 3d 908, 910 (Fla. 5th DCA 2013)). “To prevail on a motion for summary judgment, a movant must show that (1) ‘there is no genuine dispute as to any material fact’ and (2) ‘the movant is entitled to judgment as a matter of law.’” Id. (quoting Fla. R. Civ. P. 1.510(a)); Williams v. Weaver, 381 So. 3d 1260, 1264 (Fla. 5th DCA 2024) (quoting Welch v. CHLN, Inc., 357 So. 3d 1277, 1278 (Fla. 5th DCA 2023)).

“In amending Florida Rule of Civil Procedure 1.510, the Florida Supreme Court sought to align Florida’s summary judgment rule with the federal summary judgment standard.” Olsen, 359 So. 3d at 877 (citing In re: Amends. to Fla. R. Civ. P. 1.510, 317 So. 3d 72, 74 (Fla. 2021)). “According to the Florida Supreme Court, ‘those applying new rule 1.510 must recognize the fundamental similarity between the summary judgment standard and the directed verdict standard.’” Id. (quoting In re: Amends. to Fla. R. Civ. P. 1.510, 317 So. 3d at 75). “Both standards focus on ‘whether the evidence presents a sufficient disagreement to require submission to a jury.’” Id.

“And under both standards, ‘[t]he substantive evidentiary burden of proof that the respective parties must meet at trial is the only touchstone that accurately measures whether a genuine issue of material fact exists to be tried.’” Id. (citations omitted). “Those applying the new rule 1.510 must recognize that the correct test for the existence of a genuine factual dispute is whether ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Id. (citing In re: Amends. to Fla. R. Civ. P. 1.510, 317 So. 3d at 75) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986)). “Thus, in Florida it will no longer be plausible to maintain that ‘the existence of any competent evidence creating an issue of fact, however credible or incredible, substantial or trivial, stops the inquiry and precludes summary judgment, so long as the ‘slightest doubt’ is raised.’” Id. (citation omitted).

Analysis:

Overseas Fuels argues the circuit court erred in finding the Largo Fuels Lease and Overseas Fuels Lease to be two separate and distinct leases rather than the Overseas Fuels Lease being simply and effectively an

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assignment of the Largo Fuels’ Lease. Overseas Fuels’ argument fails both factually and legally. First, no record evidence created a material factual issue that the parties were operating based on a single lease that was assigned as opposed to a second new lease. Indeed, the record evidence supports that the parties intended to create a new lease which, although similar to the original Largo Fuels Lease, was intended to be a new and separate lease involving different parties and divorced from the financial and credit issues that led Overseas Fuels to request a new lease in the first place.

The record further indicates no written assignment of the Largo Fuels Lease occurred. Nonetheless, Overseas Fuels argues that the Largo Fuels Lease was assigned because Largo Fuels was effectively and actually dissolved, with Overseas Fuels replacing it as the assignee of the lease. This argument does not withstand factual scrutiny, nor satisfy the dictates of section 689.01, Florida Statutes (2021), which requires any assignment of a lease to be in a signed writing. Overseas Fuels’ argument also fails to adequately address the Largo Fuels Lease express provision that “[n]o assignment or right of occupancy hereunder maybe (sic) effectuated by operation of law or otherwise without the prior written consent of the Landlord.”

Unable to establish an express, written assignment, Overseas Fuels asserts entitlement to equitable waiver based on facts it contends are sufficient to overcome the lack of an express, written assignment. Overseas Fuels cites Wing, Inc. v. Arnold, 107 So. 2d 765 (Fla. 3d DCA 1958), for the unremarkable proposition that courts have the authority to apply the principle of equitable waiver. Wing is distinguishable, however, because it did not involve a situation where the court was considering the application of equitable waiver in the context of directly controlling written contractual provisions. Overseas Fuels fails to cite to a single case where a court has applied equitable waiver in the face of an express anti-waiver provision in a contract.

Florida courts have consistently rejected implied waiver claims based on conduct or oral statements where the parties’ contract contains an express anti-waiver provision. In Rybovich Boat Works, Inc. v. Atkins, 587 So. 2d 519, 522 (Fla. 4th DCA 1991), we reversed summary judgment in favor of a buyer and affirmed summary judgment for a seller, on the buyer's affirmative defenses. Relevant to this case, Rybovich held:

Seller was entitled to a summary judgment, unless there was an issue of material fact as to the affirmative defenses raised by buyer. The buyer claimed that through the course of

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dealings between the parties and the numerous extensions seller waived or was estopped to enforce the time of the essence clause. Although such time of the essence provisions may be waived by the conduct of the parties, see Coppola Enterprises, Inc. v. Alfone, 531 So. 2d 334 (Fla. 1988), and “summary judgment is particularly unsuitable in those cases where the facts and circumstances indicate the possibility of waiver and estoppel”, Dusich v. Horley, 525 So. 2d 507 (Fla. 2d DCA 1988), this contract contained an anti-waiver provision which provided:

Except as otherwise expressly provided herein, no waiver of any rights or obligations hereunder shall be deemed to have occurred unless in writing signed by the party against whom such waiver is asserted and no waiver shall be deemed a waiver of any other or subsequent right or obligation....

Thus under the anti-waiver provision of this agreement the time of the essence provision could not have been waived unless there was a writing signed by the party against whom the waiver was asserted.

Rybovich, 587 So. 2d at 521–22; see also Inlet Colony, LLC v. Martindale, 340 So. 3d 492, 496 (Fla. 4th DCA 2022); Raimondi v. I.T. Chips, Inc., 480 So. 2d 240, 243 (Fla. 4th DCA 1985) (waiver and estoppel claims “not available” where parties’ lease contained anti-waiver clause); Nat’l Home Cmtys., L.L.C. v. Friends of Sunshine Key, Inc., 874 So. 2d 631, 634 (Fla. 3d DCA 2004) (“Florida courts have consistently enforced [anti-waiver] clauses”) (collecting cases). Unlike Wing, Rybovich addressed equitable waiver theory based on a “course of dealings” and expressly held equitable waiver to be insufficient where the parties’ contract contained an express anti-waiver provision. Rybovich, 587 So. 2d at 521–22.

The circuit court properly concluded that no genuine issues of material fact existed to prevent the entry of summary judgment. We find the remaining issues raised by Overseas Fuels to be without merit and thus affirm the trial court’s entry of summary judgment.

Affirmed.

SHEPHERD and LOTT, JJ., concur.

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Not final until disposition of timely-filed motion for rehearing.