Mootness of Specific Performance Appeals After Voluntary Closing and Third‑Party Assignment: A Comprehensive Commentary on Francisco Lagos Marmol v. Kalonymus Development Partners, LLC

I. Introduction

This Eleventh Circuit decision addresses a relatively “simple” real-estate contract breach with non‑simple procedural consequences. The case turns on two central questions:

Whether the Sellers could still challenge the district court’s award of specific performance after fully closing the court‑ordered sale and allowing the buyer to assign its interest to third‑party LLCs; and
Whether the Buyer (Kalonymus Development Partners, LLC) proved legally cognizable damages in its breach‑of‑contract claims, particularly regarding financing costs, lost profits, administrative expenses, and tax benefits.

Judge Lagoa, writing for a unanimous panel (Judges Luck, Lagoa, and Abudu), holds that:

The specific performance issue is moot because the sale closed and the Buyer’s rights were assigned to non‑party entities beyond the court’s effective remedial reach, and because the Sellers voluntarily declined to pursue a stay pending appeal.
The damages issues remain live, and the district court largely acted within its discretion in awarding damages; however, the court reverses the award for lost tax savings because any such benefit would flow to the LLC’s members, not the LLC itself.

The case thus makes two important contributions:

It clarifies how Article III mootness applies to appeals from orders of specific performance in real property transactions once the sale has closed and rights have been assigned to third parties — especially where the losing party voluntarily forgoes a stay and supersedeas bond.
It refines the law of contract damages and standing in the context of LLCs, rejecting an award of tax-depreciation-based damages where the tax injury belongs to equity owners rather than the LLC itself.

II. Background of the Case

A. The Transaction and the Membership Purchase Agreement

The dispute centers on the sale of membership interests in Best Peacock Inn, LLC, an entity owning a Miami rental property called the “Best Peacock Inn” (or “Peacock Inn”). The parties:

Sellers / Appellants:
- Francisco Lagos Marmol
- Fernando Van Peborgh
Buyer / Appellee:
- Kalonymus Development Partners, LLC (“Kalonymus”), a real-estate investment/development firm wholly owned by Maximilian Zeff.

In June 2021, the parties entered into a Membership Purchase Agreement under which Marmol and Van Peborgh agreed to sell their combined 100% membership interests in Best Peacock Inn, LLC to Kalonymus (or its assignee) for $5,450,000. The closing date was initially September 13, 2021, later extended to October 8, and then to October 22, 2021.

Section 8.2 of the Agreement is crucial. It delineated the Buyer’s remedies upon a Seller default:

In the event of a default by Seller… Buyer shall have the sole and exclusive remedies of either (i) terminating this Agreement, and receiving the return of its Deposit…; or (ii) proceeding to enforce this Agreement by an action for specific performance, as Buyer shall thereby, without waiving Buyer's right to recover any and all losses, damages, costs and expenses resulting from Seller's default.

Notwithstanding anything to the contrary herein contained, in the event of an intentional willful failure of Seller to perform any matter reasonably within its control or in the event any of the warranties and representations made by Seller herein shall be in any material respect inaccurate… Buyer shall have any and all remedies available… under the laws of the State of Florida.

B. The Breach: Mortgage Prepayment Restriction

In early October 2021, Sellers say they discovered an embedded mortgage prepayment restriction on the underlying property. They contend the mortgage could be paid off only in the first quarter of each year (January–March), making it impossible for them to close in October 2021 as required. They admitted that:

They did not previously recall or know of the restriction; and
They breached by failing to close on time.

On October 28, 2021, counsel for Kalonymus notified Sellers of their “material default” and claimed:

Delay in financing caused increased transaction fees and a material increase in interest rate;
Kalonymus was suffering lost rental income, calculable from the rent roll.

C. Failed Attempts to Salvage the Deal

Over late 2021 and early 2022:

Sellers repeatedly offered to close at the original price once they believed they could perform (Dec 2021, Jan 2022, Feb 2022).
Kalonymus refused to close at the original price, citing changed market conditions and its claimed damages; it demanded a price reduction to offset lost income, increased financing costs, and legal fees.
Sellers refused any reduction, viewing the delay as “short” and the requested concession “totally unreasonable” and “unfair.”

The deal collapsed, and the Agreement did not close in 2021–2022.

D. Litigation in the District Court

Buyer’s Suit:
Kalonymus sued in state court for:
- Specific performance (to compel transfer of the membership interests), and
- Damages for breach of contract.
Sellers removed the case to federal court.
Sellers’ Declaratory Judgment Action:
Sellers separately filed a federal action seeking a declaration that it was Kalonymus (not the Sellers) who had breached the Agreement, arguing:
- By suing for specific performance, Buyer elected to continue the Agreement;
- Buyer was therefore obligated to close later at the original purchase price once Sellers were able; and
- Buyer breached by refusing those offers, thus losing any claim to damages.

The district court consolidated the two actions and granted Kalonymus’s motion to dismiss Sellers’ declaratory action, characterizing their requested declarations as addressing only past acts and not preventing future harm or guiding future conduct.

Thus, for practical purposes:

Kalonymus became the effective Plaintiff (seeking specific performance and damages);
Marmol and Van Peborgh became the effective Defendants in the main case.

E. Summary Judgment and Bench Trial

On cross-motions for summary judgment:

The district court denied Sellers’ motion, noting they failed to meaningfully address the elements of Kalonymus’s actual claims.
The court granted partial summary judgment to Kalonymus on liability, finding:
- There was a valid contract;
- Sellers breached by failing to close in October 2021; and
- Kalonymus suffered some damages from the breach, though the amount required trial.

A two-day bench trial followed, limited to the amount of damages. Witnesses included:

Maximilian Zeff (owner of Kalonymus);
Marmol and Van Peborgh; and
Kalonymus’s damages expert, Paul Habibi.

The district court’s final judgment:

Reiterated entitlement to specific performance, now based on a revised sale price of $5,150,000 (per an Amendment that Sellers disputed but conceded was not outcome‑determinative to their appellate theory);
Ordered the parties to close on the Best Peacock Inn on or before November 27, 2023;
Awarded $1,553,245 in damages to Kalonymus, contingent on Sellers providing financing on terms comparable to those offered in October 2021.

F. The Closing, Assignments, and Motion to Stay

The closing occurred as ordered. At closing:

Kalonymus, as permitted by the Agreement (to itself “and/or its assignee”), assigned virtually all of its membership interests in Best Peacock Inn, LLC to:
- 3667 Poinciana, LLC – 99.5% interest; and
- Poinciana, LLC – 0.5% interest.

Critically:

These Poinciana entities were not parties to the litigation.
3667 Poinciana, LLC was itself 99.99% owned by RDZ Family, LLC, a family entity of Zeff’s father; Zeff held less than 1% of 3667 Poinciana and had no power to appoint or remove 3667 Poinciana as manager of Best Peacock Inn.

Before closing, Sellers initially moved for an expedited stay of execution of the specific performance judgment pending appeal, candidly telling the district court:

Without a stay, they would be forced to convey the property;
Such conveyance would render their appeal effectively moot as to the specific performance award;
They were willing to post a bond or security.

Kalonymus did not oppose a stay if Sellers posted a $3.2 million bond. The district court ordered Sellers to state either non‑objection to that amount or provide a reply. Instead, Sellers withdrew their motion to stay and proceeded to close the transaction on November 27, 2023.

Only after closing did they pursue this appeal, seeking to challenge both:

Entitlement to specific performance; and
The amount and legality of damages.

III. Summary of the Eleventh Circuit’s Opinion

A. Specific Performance: Appeal Dismissed as Moot

The court refuses to reach the merits of Sellers’ challenge to the award of specific performance. It holds that the issue is moot because:

The sale required by the judgment has already been fully consummated;
Kalonymus has assigned its rights to non‑party LLCs that now own and control the property;
The court cannot provide any effectual relief (such as ordering a reconveyance) within its jurisdictional reach; and
Mootness is reinforced by Sellers’ voluntary decision to withdraw their motion for a stay and proceed with closing, knowing that doing so would likely moot their appeal on specific performance.

Accordingly, the Eleventh Circuit dismisses the appeal as to specific performance.

In a significant nuance, the court declines to vacate the district court’s specific performance ruling. Applying U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, it holds that where mootness is caused by the losing party’s voluntary actions (here, closing without a stay), the equitable remedy of vacatur is not warranted. The specific performance portion of the district court’s judgment therefore remains binding on the parties.

B. Damages: Affirmed in Part, Reversed in Part, and Remanded

The damages controversy remains a live case or controversy. The court:

Affirms the district court’s determination at summary judgment that Kalonymus established the existence of damages from the breach;
Affirms, following the bench trial, the award of damages for:
- Increased cost of capital (debt and equity) caused by market movements between October 2021 and closing;
- Lost profits / lost rental income (cash flows from operations);
- Duplicate administrative expenses incurred in re‑doing due diligence and transaction steps.
Reverses the award of lost tax savings, holding that the LLC itself cannot claim as damages tax benefits that would have accrued only to its individual members; thus the $14,217 component for lost bonus‑depreciation benefits must be removed.

The court vacates the total damages award and remands solely for recalculation of damages consistent with the exclusion of tax‑savings damages.

IV. Analysis of the Opinion

A. Precedents Cited and Their Influence

1. Core Article III Mootness Doctrine

The panel’s mootness analysis is firmly anchored in longstanding Supreme Court and Eleventh Circuit doctrine:

Article III “Cases” and “Controversies” – Chafin v. Chafin, 568 U.S. 165 (2013); Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013):
- Federal courts can only adjudicate live disputes where they can grant meaningful relief.
Mootness Principle – Church of Scientology of California v. United States, 506 U.S. 9 (1992); Mills v. Green, 159 U.S. 651 (1895):
- Court has no authority to issue opinions on moot questions or to declare rules that cannot affect the matter at issue.
What is Mootness? – Powell v. McCormack, 395 U.S. 486 (1969); Florida Ass’n of Rehabilitation Facilities v. Florida Dep’t of Health & Rehab. Servs., 225 F.3d 1208 (11th Cir. 2000):
- A case is moot when the issues are no longer “live” or the parties lack a legally cognizable interest in the outcome.
- Events occurring after commencement can render a case moot if no meaningful relief is possible.

The court also cites its own articulation in Gagliardi v. TJCV Land Trust, 889 F.3d 728 (11th Cir. 2018): there must be something “alive, present, real, and immediate” so a court can provide “redress in some palpable way.”

2. Mootness in Property Cases After Sale

The panel relies heavily on precedents that treat appeals as moot once disputed property has been sold to third parties not before the court:

Aquamar, S.A. v. Del Monte Fresh Produce N.A., Inc., 179 F.3d 1279 (11th Cir. 1999):
- Adopts the classic standard that a case is moot when it is “impossible” to grant “any effectual relief whatever.”
Holloway v. United States, 789 F.2d 1372 (9th Cir. 1986):
- Taxpayers sought to prohibit IRS sale of property; they failed to get a stay; property was sold to a non‑party; appeal held moot because court could no longer undo sale.
- Emphasizes litigants must obtain a stay pending appeal to preserve meaningful appellate remedies.
Heitmuller v. Stokes, 256 U.S. 359 (1921):
- Action for possession of real estate became moot after defendant sold the property during appeal; court will not decide moot cases.

The Eleventh Circuit analogizes the present case to those situations: once the subject property is sold and title is conveyed to non-party owners, an appellate court cannot practically unwind the transaction.

3. The Role of Stays and Bankruptcy Analogies

The court borrows a principle from bankruptcy appellate practice, where sales are routinely treated as moot if the appellant does not obtain a stay:

In re Charter Co., 829 F.2d 1054 (11th Cir. 1987):
- Once a sale approved by the bankruptcy court is consummated without a stay, an appellate court cannot grant effective relief; appeal is moot.
In re Matos, 790 F.2d 864 (11th Cir. 1986):
- Failure to obtain a stay of an order lifting an automatic stay and allowing foreclosure renders any challenge to the foreclosure moot after the sale occurs.
Romspen Mortgage Ltd. Partnership v. BGC Holdings LLC – Arlington Place One, 20 F.4th 359 (7th Cir. 2021), citing FDIC v. Meyer, 781 F.2d 1260 (7th Cir. 1986):
- Articulates a general rule (beyond bankruptcy) that sale of property to a good‑faith purchaser during the pendency of an appeal, absent a stay, typically moots the appeal from the sale order.
In re Stanford, 17 F.4th 116 (11th Cir. 2021) (Jordan, J., concurring in part):
- Identifies policy foundations: finality and discouraging “buyer’s remorse.”

Here, the Sellers not only failed to obtain a stay, they actually withdrew their motion, despite acknowledging on the record that closing would “inevitably” make their appeal on specific performance moot. The court treats this as a decisive factor.

4. Paris v. HUD and the Limits of Equitable Power

Sellers invoked the Seventh Circuit’s decision in Paris v. U.S. Department of Housing & Urban Development, 713 F.2d 1341 (7th Cir. 1983), where the court held that a real-property dispute was not moot despite a completed sale because the court retained jurisdiction over the parties effectively controlling the property and could compel restoration of the status quo.

The Eleventh Circuit sharply distinguishes Paris:

There, the buyer and seller were both defendants in the action, and the buyer was the sole general partner of the partnership that acquired title; under state law, the court could compel that partnership to reconvey the property.
Here, by contrast:
- Kalonymus (the original buyer) is the party before the court, but it assigned its interests to 3667 Poinciana and Poinciana, non-party LLCs.
- Zeff is not a party and, by uncontroverted testimony, lacked control over 3667 Poinciana, LLC; that entity is controlled by RDZ Family, LLC (also a non-party, with its own counsel not representing Zeff).
- Therefore, no party before the court has actual legal power to reconvey the property or bind the entities who now manage it.

This analysis underscores a key principle: Article III mootness is not cured merely by the theoretical possibility that someone related to the parties might unwind the deal. The court must be able to grant “redress in some palpable way” against parties actually before it.

5. Bona Fide Purchasers and Lis Pendens

There is a sidebar discussion of whether the Poinciana entities were bona fide purchasers under Florida law:

Harkless v. Laubhan, 278 So. 3d 728 (Fla. 2d DCA 2019), and Miami Center Ltd. Partnership v. Bank of New York, 838 F.2d 1547 (11th Cir. 1988):
- A bona fide purchaser must pay value and lack knowledge of a conflicting claim or interest in the property, not merely knowledge of a lawsuit.

Sellers argued Poinciana entities were not bona fide purchasers because they knew about the litigation. But:

The court notes that the Sellers signed closing documents attesting that title to Best Peacock Inn was free of encumbrances or claims.
Sellers did not record a lis pendens (a notice in the land records that property is subject to litigation) until July 2024 — months after the closing and after the appeal began.
Knowledge of the existence of litigation is not the same as knowledge of an adverse property claim that would defeat bona fide status.

While this discussion is not central to the holding on mootness (which turns more on jurisdictional reach and lack of stay), it signals that the Poinciana entities are treated as bona fide purchasers, reinforcing the finality of the sale.

6. Vacatur: U.S. Bancorp, Munsingwear, and Equity

When an appeal becomes moot, the usual practice under United States v. Munsingwear, Inc., 340 U.S. 36 (1950), is to vacate the judgment below to prevent unreviewed decisions from having preclusive effects. But U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994), refines that:

Vacatur is an equitable remedy, not automatic; courts weigh whether the party seeking vacatur caused the mootness through voluntary action.
When a losing party voluntarily foregoes its legal remedies (e.g., by settling or, here, by closing without a stay), it has surrendered its claim to vacatur.

The Eleventh Circuit applies this equitable framework and, citing De La Teja v. United States, 321 F.3d 1357 (11th Cir. 2003) and Westmoreland v. NTSB, 833 F.2d 1461 (11th Cir. 1987), declines to vacate the specific performance judgment because:

Mootness here was not a “vagary of circumstance” (such as death or happenstance), but the direct result of Sellers’ voluntary compliance with the judgment and decision not to pursue a stay.
Thus, the specific performance ruling remains in force between the parties — even though it can no longer be effectively appealed.

7. Damages and Florida Contract Law

On damages, the court relies on Florida contract principles, particularly:

Sun Life Assurance Co. of Canada v. Imperial Premium Finance, LLC, 904 F.3d 1197 (11th Cir. 2018), quoting Caulkins Indiantown Citrus Co. v. Nevins Fruit Co., 831 So. 2d 727 (Fla. 4th DCA 2002):
- Under Florida law, a plaintiff must prove damages with reasonable certainty; damages cannot be speculative or based purely on conjecture.

Applying this principle:

The court holds that evidence from Kalonymus’s expert (Habibi) and communication to Sellers in October 2021 provided sufficient non‑speculative support for:
- Increased cost of capital;
- Lost rental income; and
- Transaction‑related “duplicate” expenses.
But the court finds that “lost tax savings” were not proven as an injury to the entity itself; they would have accrued to the members individually, not the LLC — and thus were not a permissible damage item for this plaintiff.

B. The Court’s Legal Reasoning

1. Why Specific Performance Is Moot

The court’s reasoning on mootness is essentially two‑pronged:

No Effective Relief Available

The court cannot:

Undo the completed sale; or
Compel third‑party assignees (3667 Poinciana, LLC and Poinciana, LLC) to reconvey the property or restore the status quo.

Key factual and legal points:

Sellers knowingly signed the assignment documents acknowledging that:
- Kalonymus was assigning “all of its rights, title, and interests” to the Poinciana entities; and
- 3667 Poinciana would become manager and majority owner (99.5%).
Neither the Poinciana entities nor RDZ Family, LLC nor Zeff’s father are parties in the case.
Zeff himself lacks power to remove 3667 Poinciana as manager or compel it to reconvey.

Thus, even if the Eleventh Circuit agreed that the district court erred in granting specific performance, any mandate to “transfer the shares back” would be ineffectual. The court cannot order relief against those who are not before it and not controlled by any party before it.

Failure to Obtain (and Withdrawal of) a Stay

The Sellers’ own litigation choices are decisive:

They themselves argued to the district court that absent a stay, the closing would moot their appeal on specific performance.
They stated willingness to post a bond, but when presented with a $3.2 million bond requirement, they withdrew their motion to stay.
They then voluntarily closed the transaction.

The court explicitly invokes the principle (developed in bankruptcy but now applied more generally) that:

A party who chooses to appeal but fails to obtain a stay pending appeal risks losing its ability to realize the benefit of a successful appeal.

This risk materialized here; the appeal on specific performance has become an academic exercise.

2. Why the Damages Issues Remain Live

Unlike the specific performance claim, which focused on the property transfer, the damages claims:

Concern monetary compensation for harm caused by the Sellers’ breach; and
Remain fully susceptible to judicial relief (adjustment of the amount of the judgment).

Under Powell v. McCormack and Adler v. Duval County School Board, the existence of some moot issues does not moot an entire case if other issues continue to present a live controversy. Accordingly, the court proceeds to review both:

The grant of summary judgment on entitlement to damages; and
The bench trial damages award for clear error.

3. Evaluating Kalonymus’s Damages

Sellers’ core argument was that Kalonymus itself did not suffer damages; rather, any harm was borne by:

Zeff personally;
Zeff’s family members; or
3667 Poinciana and related entities.

The Eleventh Circuit rejects this, item by item (except for tax savings).

a. Cost of Capital (Debt and Equity)

Habibi testified that:

The cost of debt (interest rates) and the cost of equity (investors’ required return) both rose sharply between October 2021 and the date when closing ultimately became possible.
If the transaction had closed in October 2021, the total cost of capital would have been approximately $1.83 million; due to the delay, it rose to over $3.5 million, generating substantial incremental cost-of-capital damages.

After Sellers offered, at trial, to finance a portion of the transaction on October 2021 terms, Habibi recalculated the cost of capital, which the district court adopted, leading to a revised cost-of-capital figure of $1,322,850 used in the final damages award.

Sellers’ counter-arguments:

That 3667 Poinciana, not Kalonymus, was the named borrower under the Newmark term sheet; and
That Kalonymus therefore suffered no increase in debt costs or equity contribution obligations.

The court rejects this as a red herring because:

At the time of the breach and throughout most of the litigation, the only buyer under the Membership Purchase Agreement was Kalonymus.
Any future assignment to special‑purpose entities (like 3667 Poinciana) was contingent on a successful closing, which did not occur in 2021 due to Sellers’ breach.
Evidence showed that:
- Kalonymus itself paid a $131,000 deposit, funded by borrowing; and
- Habibi credibly opined (and the court accepted) that Kalonymus bore equity capital costs as an arm’s‑length investor, given the intended structure.

Thus, the increased cost of capital is treated as a direct injury to the Buyer corporation, not to successors or affiliates. The court emphasizes the deference owed to the district court’s factual determinations following live testimony (citing Superior Construction Co. v. Brock).

b. Lost Profits / Lost Rental Income

Habibi also calculated lost rental income (lost profits from operations) at approximately $175,028, representing the cash flow from the property that would have accrued to the Buyer during the delay.

Sellers argued that:

Kalonymus would not have been the landlord or owner; and
Distributions would have flowed to other entities or investors.

But they provided no concrete evidence of a structure in which Kalonymus would receive no benefit from the rental stream. By contrast:

Habibi testified that “the buyer entity” (i.e., Kalonymus) was entitled to cash flows;
The Membership Purchase Agreement’s language (to “Buyer and/or its assignee”) presupposed that economic benefits would initially flow to the Buyer.

Given the lack of counter‑evidence and the non‑speculative nature of the expert’s modeling, the court holds that the lost profits award is not clearly erroneous under Florida damages law.

C. Duplicate Administrative Expenses

“Duplicate expenses” (approximately $41,150, after correction) refer to the additional due‑diligence and transaction costs that had to be re‑incurred because the closing did not occur as scheduled, including:

Zoning reports;
Property condition reports;
Appraisals;
Environmental site assessments;
Legal fees associated with the later closing and financing.

These costs were not speculative: they were part of the actual transactional expenses needed to resurrect the deal in a later time period. The court emphasizes that, regardless of who paid for the first round of such work, the second round was an additional cost borne by Kalonymus and fairly attributable to Sellers’ breach.

d. Lost Tax Savings (Reversed)

The only damages item reversed is the $14,217 for lost tax savings tied to bonus depreciation under the 2017 Tax Cuts and Jobs Act. The logic:

Bonus depreciation on assets held by an LLC that is taxed as a partnership (or disregarded entity) passes through to the members’ individual tax returns.
As Habibi directly testified, an LLC itself “cannot take advantage of tax benefits related to asset depreciation”; it is the members who suffer any loss of those benefits.

Therefore:

Any lost ability to claim bonus depreciation due to the delayed closing would have injured individual equity owners, not the LLC entity; and
Kalonymus, as an entity, lacked standing to claim that tax injury as its own damage component.

This part of the decision is significant doctrinally: it underscores that pass‑through tax injuries are personal to the owners, and a pass‑through entity cannot recover those injuries as its own damages in a breach‑of‑contract action.

C. Impact of the Decision

1. Practical Lessons for Real-Estate Litigants and Counsel

The decision sends a clear, practical message:

If a party wishes to preserve an appeal from a specific performance judgment requiring transfer of real property, it must:
- Promptly seek and obtain a stay of execution pending appeal; and
- Be prepared to post an adequate bond.
Voluntarily closing the sale without a stay — especially after acknowledging that doing so will moot the appeal — will almost certainly foreclose appellate review of the specific performance order.
Assignments to special-purpose entities (even if they are broadly “affiliated” with the buyer) will deepen mootness if those entities are:
- Non-parties, and
- Legally controlled by persons not subject to the court’s jurisdiction or directives.

Lawyers structuring such transactions should also be aware that:

Failure to file a timely lis pendens may leave transferees as bona fide purchasers, further limiting post‑closing relief.
Efforts to reserve appellate rights by side letters or pre‑closing emails will not overcome the legal finality of signed closing documents that grant clear title without encumbrances.

2. Clarification of Vacatur Doctrine in the Eleventh Circuit

The decision is also notable for how explicitly it applies Bancorp:

When mootness is self‑inflicted through voluntary actions (e.g., compliance without stay), the losing party generally cannot erase the district court’s adverse judgment via vacatur.
This strengthens the incentives to:
- Seek stays where appellate review is desired; and
- Avoid strategic “voluntary compliance” designed to circumvent or undermine the precedential or preclusive effect of a judgment.

For practitioners, it means that a decision like the district court’s specific performance judgment in this case can continue to have res judicata or collateral estoppel impact in future disputes between the same parties, notwithstanding the mootness of the appeal.

3. Contract Damages for Investment Entities

On damages, the case provides several important signposts:

Courts are willing to recognize cost-of-capital damages (including both debt and equity costs) in breach-of-contract cases involving delayed closings and volatile capital markets, where those costs can be:
- Quantified with expert testimony; and
- Linked causally to the delay caused by the breach.
“Lost profits” may include lost cash flows from the anticipated operation of the acquired property, again if modeled with reasonable certainty.
“Duplicate expenses” are a legitimate species of consequential damages where the transaction has to be substantially re‑done due to the breaching party’s delay.
However, pass‑through tax benefits (like depreciation) generally:
- Belong to owners, not entities; and
- Cannot be claimed as damages by the entity unless the entity itself bears some independent tax liability or cost.

This last point may influence how LLCs and partnerships plead damages: if they wish to include tax‑related losses, they may need to:

Include the members as plaintiffs; or
Show that the entity itself (e.g., a C‑corporation or tax‑paying entity) directly bears the tax burden affected by the breach.

4. Florida Contract Remedies and Election

Although not developed at length in the opinion, the case implicitly affirms:

Under the Agreement’s Section 8.2 and Florida law, a buyer may pursue specific performance and damages concurrently, rather than being forced to elect one or the other; and
A buyer’s refusal to close at the original price after the seller’s breach does not, by itself, transform the buyer into the breacher or extinguish the buyer’s existing damages claim, particularly where the contract expressly preserves rights to “any and all losses, damages, costs and expenses” from the seller’s default.

Sellers’ theory of “election” — that by suing for specific performance, the Buyer committed itself to close at the original price regardless of intervening circumstances — finds little traction. The court’s grant of summary judgment to the Buyer on liability reflects the opposite view: the breach accrued at the time of non‑closing, and that breach gave rise to damages claims that were not extinguished by later negotiations.

V. Simplifying Key Legal Concepts

1. Specific Performance

Specific performance is an equitable remedy compelling a party to do exactly what it promised in a contract, rather than merely paying money damages. It is commonly used for:

Real estate contracts (because land is considered unique); and
Agreements where damages are difficult to measure.

In this case, specific performance meant a court order requiring Sellers to transfer their membership interests in Best Peacock Inn, LLC, thereby conveying the property to Buyer (or its assignee).

2. Mootness

Mootness is a doctrine derived from Article III’s requirement that federal courts decide only “cases” and “controversies.” A case becomes moot when:

Events after filing mean the court cannot give effective relief; or
The parties no longer have a concrete interest in the outcome (for example, where the problem has been fully resolved and no live dispute remains).

Here, once:

The property had been conveyed to third-party LLCs; and
No party before the court could compel those LLCs to reconvey;

any order about specific performance would be essentially advisory, not practically enforceable. That is classic mootness.

3. Stay Pending Appeal and Supersedeas Bond

A stay pending appeal is an order that pauses enforcement of a judgment while its validity is reviewed on appeal. In money judgments and property cases, courts often require the appellant to post a supersedeas bond to:

Protect the appellee against loss if the judgment is affirmed;
Ensure the appellant is serious about the appeal and can satisfy the judgment if necessary.

Without a stay, the winning party may enforce the judgment (e.g., by taking title to property). As this case shows, if a party does not secure a stay and the judgment is fully executed (here, the sale closes), the appeal may become moot — even if the appellate court might otherwise have agreed that the judgment was erroneous.

4. Vacatur

Vacatur is the appellate remedy of wiping out the judgment of the lower court when appellate review becomes impossible (usually because the case has become moot). The Supreme Court’s Munsingwear doctrine originally favored vacatur to prevent unreviewed judgments from having binding effect.

However, U.S. Bancorp clarifies that:

Vacatur is discretionary and equitable;
When mootness is caused by the party seeking vacatur (e.g., by voluntarily settling, or, as here, by voluntarily complying with the judgment without a stay), courts generally will not vacate the underlying judgment.

This preserves fairness: a losing party cannot both:

Make the case unreviewable by its own acts; and
Demand erasure of the judgment it voluntarily complied with.

5. Cost of Capital

Cost of capital is the combined cost of:

Debt – the interest rate and fees the investor must pay to lenders; and
Equity – the rate of return expected by investors who provide cash in exchange for ownership (shares/membership interests).

In a rising interest‑rate environment, the cost of both debt and equity can increase significantly. If a contractual breach delays a closing into a period of higher financing costs, the injured party can, in principle, claim the extra cost as damages, provided they:

Prove the amounts with reasonable certainty; and
Show the increase is causally linked to the delay from the breach.

6. Lost Tax Savings

Lost tax savings (here, bonus depreciation) occur where tax law would have allowed a deduction, but due to a breach, that deduction is lost or reduced.

When dealing with pass‑through entities like LLCs:

The entity generally does not pay tax itself; profits and losses are “passed through” to members, who report them on their individual returns.
Thus, members, not the entity, suffer a loss of tax benefits like depreciation deductions.

In this case, the court held that only the members had an injury in tax terms; the LLC plaintiff, Kalonymus, did not. Therefore, lost tax savings could not be part of its damages.

VI. Conclusion and Key Takeaways

Francisco Lagos Marmol v. Kalonymus Development Partners, LLC is, on its face, a dispute over a missed closing date. But its significance lies in the procedural and remedial lessons it crystallizes:

Appeals from Specific Performance Orders Are Fragile Without Stays
When a district court orders specific performance of a real estate contract, a party that wishes to appeal that order must:
- Seek and generally obtain a stay of execution pending appeal; and
- Be prepared to post a supersedeas bond.
Voluntarily closing the deal without a stay — especially after acknowledging that doing so will moot the appeal — will almost certainly doom any appellate challenge to the specific performance ruling.
Third‑Party Assignments and Corporate Structures Can Cement Mootness
Assigning property interests to non-party, independently controlled entities (such as family LLCs managed by others) makes it impossible for the appellate court to grant effective relief, thereby contributing to mootness. The court will not assume it can pierce corporate veils or compel non‑parties to unwind a transaction.
Vacatur Is Not a Free Reset When Mootness Is Self‑Inflicted
The Eleventh Circuit’s refusal to vacate the specific performance judgment, relying on Bancorp, underscores that litigants who cause mootness themselves cannot expect to erase the adverse judgment. That judgment can continue to bind them in future disputes.
Investment Entities Can Recover Real, Non‑Speculative Financing and Profit Damages
The decision endorses a sophisticated approach to contract damages in commercial real estate, allowing:
- Damages for increased cost of capital (debt and equity);
- Lost rental income as lost profits; and
- Duplicate administrative expenses incurred in re‑doing the deal.
As long as these are grounded in concrete evidence and expert testimony, they meet Florida’s requirement of damages proven with reasonable certainty.
But Pass‑Through Tax Benefits Are Not Entity‑Level Damages
The reversal of the lost tax savings component marks an important clarification: an LLC cannot claim, as its own damages, tax benefits (like bonus depreciation) that would have flowed directly to its members. Contract damages must align with who actually suffers the economic injury.

Overall, this opinion integrates Article III mootness, equitable vacatur, and Florida contract damages in a way that provides practical guidance for real-estate litigators, transactional counsel, and business entities structuring acquisitions and financing. It reinforces the importance of careful procedural strategy — especially regarding stays and assignments — and precise damages theory when an LLC or similar entity seeks relief for complex financial injuries.