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Contracts Keyed to Dawson
DK Arena, Inc. v. EB Acquisitions I, LLC
Citation:112 So. 3d 85.
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Boxing promoter Don King through his corporation, DK Arena, Inc., acquired a piece of property in Florida intending to convert it into a boxing arena. However, the arena project was not found to be feasible and the property was put up for sale. John Markey, CEO of EB Developers, learned about the property and thought the site would be suitable for a mixed-use commercial and residential development. Markey formed EB Acquisitions I, LLC to facilitate purchase of the property.
On July 20, 2004, EB entered into a written contract with DK Arena agreeing to purchase the property for $23 million with a $1 million escrow deposit. The contract called for a sixty day due diligence period in which EB could give notice of cancellation and have its deposit returned. Failure to give such notice was acceptance of the property “as is.” An addendum was also executed, reiterating the due diligence period and that if EB failed to give notice of cancellation within sixty days the $1 million escrow deposit would be released to DK Arena. The addendum also stated that Don King would participate in the process of seeking local government approval for EB’s proposed project and in the project’s marketing and promotion. The addendum also clarified that the transaction did not create a joint venture between the parties.
On September 13, 2004, the parties executed a written amendment extending the due diligence period until October 4. It is alleged that during this time there were discussions about the parties entering into a joint venture. On October 4, 2004, the parties met with their respective attorneys. Markey claimed that the parties verbally agreed to extend the due diligence period indefinitely until a joint venture agreement was completed. King claimed he agreed to extend the due diligence period only until October 11, 2004. On October 5, 2004, Markey and King attended a town council meeting to present the site plans and benefits of the project. The town council scheduled an informational meeting on the project for October 26, 2004. Following the town council meeting, King met several times with a County Commissioner to discuss the project and was advised that MGM had approached the Commissioner about potential uses for the property. On October 26, 2004, King failed to attend the town council meeting.
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