THE CITY OF COCOA vs THE VILLAS OF COCOA VILLAGE, LLC, A FLORIDA LIMITED LIABILITY COMPANY

• Court: District Court of Appeal of Florida
• Decided: April 14, 2022
• Docket: 21-2208
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

THE CITY OF COCOA,

Appellant,

v. Case No. 5D21-2208 LT Case No. 2021-CA-21899

THE VILLAS OF COCOA VILLAGE, LLC, A FLORIDA LIMITED LIABILITY COMPANY,

Appellee.

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Opinion filed April 14, 2022

Nonfinal Appeal from the Circuit Court for Brevard County, David Dugan, Judge.

Erin J. O’Leary, Anthony A. Garganese, Debra S. Babb-Nutcher, and Kristin N. Eick, of Garganese, Weiss, D’Agresta & Salzman, P.A., Orlando, for Appellant.

Michael L. Dear, of The Law Office of Michael L. Dear, PLLC, Orlando, for Appellee. TRAVER, J.

The City of Cocoa (“the City”) appeals the trial court’s entry of a

temporary injunction in favor of The Villas of Cocoa Village, LLC (“the Villas”).

We have jurisdiction over this nonfinal order. See Fla. R. App. P.

9.130(a)(3)(B). On this record, the trial court erred by concluding the City’s

request for proposal (“the RFP”) constituted a binding contract that precluded

the City from terminating negotiations after almost three years and canceling

the RFP. We therefore reverse.

In 2018, the City and Cocoa Community Redevelopment Agency

(“CRA”) issued the RFP, which invited any interested parties to submit a

proposal to develop real estate the City had acquired. The RFP explained

that the winning proposer would be “required to entered [sic] into a binding

development agreement with the City and/or the CRA which will set forth the

agreed upon terms and conditions of the selected development proposal

including a development schedule under which the project will be

completed.” In addition to lacking a project completion date, the RFP omitted

the winning proposer’s fee and the project’s overall cost. The RFP further

contemplated that the winning proposer would negotiate and approve the

development agreement containing these and other details, but that the

Cocoa City Council would have separate, sole, and final discretionary

2 approval authority. The RFP also stated that the City could, at its sole

discretion, with or without notice, cease negotiations with any proposer at

any time. Finally, the RFP stated that the City could cancel, modify, waive,

or withdraw it at any time and negotiate with any other proposers to obtain

the most beneficial terms.

The City received two proposals, and it selected the Villas as the

winner of the RFP despite concerns that the Villas had not met all of the

RFP’s stated requirements. Nearly three years of negotiations ensued,

during which the parties exchanged draft development agreements but never

executed a final contract. At that time, the City’s Manager concluded that,

“[n]othing had been presented that was acceptable to the staff or the City

Manager.” The City’s Mayor moved to terminate negotiations with the Villas

and issue a new RFP. And the Cocoa City Council voted unanimously to

terminate negotiations. The City then issued a termination letter to the Villas,

citing the RFP’s language that allowed ending negotiations at any time.

In response, the Villas filed a lawsuit for promissory estoppel and

injunctive relief. After an evidentiary hearing, the trial court entered a

temporary injunction. Despite the Villas’ concession that it had no basis to

advance a breach of contract claim, the trial court concluded that when the

City determined the Villas had the winning proposal, the RFP became a

3 binding contract. The temporary injunction precluded the City from

terminating negotiations with the Villas and required the parties to negotiate

a development agreement in good faith. It prohibited the City from issuing a

new request for proposal or awarding a bid to anyone other than the Villas

for purchase or construction of the subject property.

This Court’s standard of review of a trial court order granting a

temporary injunction is “hybrid.” See Gainesville Woman Care, LLC v. State,

210 So. 3d 1243, 1358 (Fla. 2017) (citations omitted). The trial court’s factual

findings are reviewed for abuse of discretion, and its legal conclusions are

reviewed de novo. Id.; Avalon Legal Info. Servs., Inc. v. Keating, 110 So. 3d

75, 80 (Fla. 5th DCA 2013). We reverse because the RFP was not a binding

contract, and the Villas did not prove a basis for injunctive relief.

To constitute a contract, an agreement “is subject to the basic

requirements of contract law such as offer, acceptance, consideration, and

sufficient specification of essential terms.” St. Joe Corp. v. McIver, 875 So.

2d 375, 381 (Fla. 2004). Municipalities may elect to initiate service contracts

by request for proposal. 24 Fla. Prac., Fla. Municipal Law & Prac. § 11:2

(2021 ed.). A request for proposal is used, for example, when the

municipality is unable to define the scope of work required completely, or

when responses may require subsequent negotiation. Emerald Corr. Mgmt.

4 v. Bay Cnty. Bd. of Cnty. Comm’rs, 955 So. 2d 647, 651 (Fla. 1st DCA 2007)

(citing Sys. Dev. Corp. v. Dep’t of HRS, 423 So. 2d 433, 434 (Fla. 1st DCA

1982)). As a result, a contract is not typically formed until after the

negotiation process. Id.; see H. Gore Enters., v. City of W. Palm Beach, 617

So. 2d 1160, 1161 (Fla. 4th DCA 1993) (holding that no binding contract was

formed on first commission vote because award of proposal was simply

selection of vendor to negotiate contract with).

Here, the RFP expressly stated that the City and the winning proposer

would negotiate before forming any contract, and that the Cocoa City Council

would then have to approve the contract. As the Villas conceded below, there

is no contractual remedy that arises from this situation. See State, Dep’t of

Corr. v. C & W Food Serv., Inc., 765 So. 2d 728, 729–30 (Fla. 1st DCA 2000)

(holding there is no “remedy for the breach of a promise to negotiate a

contract, because there would be no way to determine whether the parties

would have reached an agreement had they negotiated”). The RFP contains

no language guaranteeing the Villas a successful negotiation. At best, it

merely constitutes an unenforceable agreement to agree.

Here, the parties failed to reach agreement after nearly three years of

trying, and thus, the Villas had no contract to enforce. Without a contractual

remedy, the Villas had no likelihood of success on the merits of its underlying

5 claim, a required element for the imposition of an injunction. See PCA Life

Ins. v. Metro.-Dade Cnty., 682 So. 2d 1102, 1103 (Fla. 3d DCA 1995). For

these reasons, we reverse.

REVERSED.

EVANDER and NARDELLA, JJ., concur.