Deepak Raj v. Brett Sutherlin, as Personal Representative of the Estate of George A. Sutherlin, et al.

D ISTRICT C OURT OF A PPEAL O F T HE STATE OF F LORIDA
FOURTH DISTRICT
DEEPAK RAJ,
Appellant,
v.
BRETT SUTHERLIN, as Personal Representative of the Estate of George
A. Sutherlin, and NADEEN S. HORAK, as Personal Representative of the
Estate of Gloria G. Stuart,
Appellees.
No. 4D2024-3333
[January 7, 2026]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian 	River 	County; 	Cynthia 	L. 	Cox, 	Judge; 	L.T. 	Case 	No.
312022CA000822.
Aaron V. Johnson and John A. Moragues of Collins Brown Barkett,
Chartered, Vero Beach, for appellant.
Matthew J. McGuane of Levine Kellogg Lehman Schneider + Grossman,
LLP, Miami, for appellee Brett Sutherlin.
Gregory R. Elder of Law Offices of Gregory R. Elder, PLLC, Boca Raton,
for appellee Nadeen S. Horak.
LEVINE , J.
Appellee Gloria Stuart sold a parcel of property to appellant Deepak
Raj. 	Stuart also agreed, by addendum, to grant Raj a right of first refusal
to 	purchase 	another 	parcel 	of 	property, 	adjacent 	to 	the 	first 	parcel.
Approximately sixteen years later, Stuart sold that adjacent property to
appellee George Sutherlin. 	Raj filed suit against appellees, seeking to
enforce his right of first refusal. 	The trial court found the right of first
refusal 	was 	unenforceable 	due 	to 	a 	lack 	of 	separate 	or 	additional
consideration. 	We find that the law does not necessarily require that the
consideration be separate and distinct. 	As such, we grant the remedy
requested by Raj and reverse and remand for further proceedings.
Stuart owned two adjacent parcels, the “1860 property” and the “1850

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property.” 	Raj offered to purchase the 1860 property for $6,100,000.
Stuart did not accept the offer and instead agreed to a purchase price of
$6,400,000. 	Raj 	and 	Stuart 	separately 	signed 	a 	document 	entitled
“COUNTER OFFER” on March 3, 2005, and April 1, 2005. The agreement
had an effective date of March 3, 2005.
During the same period of time, and specifically on February 28, 2005,
and April 1, 2005, Raj and Stuart executed a separate addendum that
granted Raj a right of first refusal to purchase the adjacent parcel, the
1850 property. The addendum began by referencing the contract between
Raj and Stuart concerning the 1860 property. The addendum then stated
that the parties “make the following terms and conditions part of the
Contract”:
Seller agrees that, as of the Effective Date of this contract
and continuing subsequent to closing, Buyer shall have a
right of first refusal to purchase Seller’s property adjoining
this property to the North, said property described on Exhibit
“B” attached hereto and being located at 1850 Highway A1A
South. 	If Seller receives an acceptable bona fide offer to
purchase the property, Seller shall give Buyer notice of the
terms of the same and Buyer shall have ten business days
from receipt of the notice from Seller within which to exercise
Buyer’s right of first refusal by execution and delivery to Seller
of a contract on the same terms and conditions as the bona
fide offer, including payment of escrow deposit as set forth in
the bona fide offer. 	At closing, Seller agrees to execute a
document evidencing the right of first refusal, which Buyer
may record in the public records.
The addendum attached legal descriptions of both properties.
In May 2005, Stuart and Raj signed a document entitled “Notice of Right
of First Refusal,” which was then recorded in the public records. 	The
notice stated that Stuart “granted [to Raj], for valuable consideration
offered and accepted,” the right of first refusal to purchase the 1850
property.
In Raj’s deposition, when questioned about consideration for the right
of first refusal, he stated as follows:
Q. 	Going back to the what we’ve all agreed is the right of
first refusal provision in this Addendum to Contract that I’m
now showing you on the screen, did you pay any additional

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money 	for 	this 	right 	of 	first 	refusal 	related 	to 	the 	1850
property?
A. 	No. 	That would be part of the contract that we
signed.
Q. 	How much of the purchase price was for the right of
first refusal?
A. 	I have no idea, but it was—there was no addition
payment made, and it was part of the contract.
Q. 	So there was no additional separated payment for this
right of first refusal? 	Is that your testimony?
A. 	That is my recollection, yes.
(emphasis added).
In 	2021, 	Stuart 	sold 	the 	adjacent 	parcel, 	the 	1850 	property, 	to
Sutherlin for $4,750,000. 	The sale and purchase contract with Sutherlin
did not contain any reference to Raj’s right of first refusal.
In 2022, Sutherlin’s estate filed an amended complaint stating claims
for declaratory judgment against Raj concerning the alleged right of first
refusal, quiet title against Raj, and breach of warranty deed against Stuart.
Raj filed amended counterclaims and crossclaims against Sutherlin and
Stuart for specific performance, declaratory action, and quiet title. 	Raj
also alleged breach of contract against Stuart.
Sutherlin filed an answer and affirmative defenses, alleging (1) the right
of first refusal was unenforceable due to lack of consideration, (2) Raj did
not timely exercise his right of first refusal after Stuart provided notice to
Raj, and (3) the claims were time-barred under the applicable one-year
statute of limitations. Sutherlin moved for summary judgment against Raj
based on these same three arguments. 	Stuart also moved for summary
judgment based on failure to timely exercise the right of first refusal and
the statute of limitations, but did not raise lack of consideration.
Raj did not move for summary judgment. Instead, Raj filed a response
arguing that there was consideration because the right of first refusal was
“part of the Contract” and that no additional consideration was required.
Raj disputed that he had received notice and argued that his claims were
not time-barred because he had filed his counterclaims within one year of

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discovering the breach.
The trial court entered summary judgment in favor of Sutherlin on all
claims and counterclaims, finding that Raj’s alleged right of first refusal
was unenforceable for lack of consideration. 	The trial court stated:
In this case, the black letter of the 2005 real estate contract
between [Stuart] and Raj for the sale of 1860, even with the
“addendum” for the right of first refusal for [R]aj to purchase
1850, shows no consideration given by Raj for the right of first
refusal. That contract specifies that the consideration paid by
Raj was only for his purchase of 1860. 	There is no language
in that contract or the addendum allocating any of the money
to be paid by Raj as consideration for the right of first refusal,
nor is there otherwise any evidence of consideration given by
Raj for the right of first refusal. 	Even if the 2005 contract
could possibly be considered “ambiguous” on this point, Raj’s
own deposition testimony establishes that all of the money he
paid was for his purchase of 1860; there was no consideration
paid for the right of first refusal option.
The trial court recognized that its ruling on Sutherlin’s motion inured
to the Stuart estate’s benefit as well. 	Accordingly, the trial court also
granted summary judgment in favor of Stuart’s estate on the ground of
lack of consideration. 	The trial court denied summary judgment on the
other two grounds of failure to timely exercise the right of first refusal after
notice and failure to comply with the statute of limitations.
Raj moved for reconsideration, arguing that the right of first refusal was
included in the sales price and that the consideration did not need to be
separate 	from 	the 	underlying 	real 	estate 	contract. 	Additionally, 	the
recorded right of first refusal stated it was for “valuable consideration,
offered 	and 	accepted.” 	The 	trial 	court 	denied 	the 	motion 	for
reconsideration, stating:
[T]he clear and unambiguous terms of the Contract for
Sale and Purchase executed by Raj as buyer and Gloria Stuart
as seller stated a price of $6.4 million for the 1860 property,
and only the 1860 property. (Contract for Sale and Purchase,
parts I and II.) 	Notably, Part I includes a provision, “Other
items included are . . .” followed by a space in which other
items — such as the right of first refusal on the 1850 property
— could have been included. Yet, that portion only references
the washer and dryer for the 1860 property. 	The addendum

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itself contains no language designating any portion of the $6.4
million as having been consideration for the right of first
refusal. The Court has no basis for considering parol evidence
to interpret the meaning of the Contract for Sale and Purchase
and the Addendum.
On appeal, Raj argues the trial court erred in granting 	summary
judgment because the record reflects that he gave consideration for the
right of first refusal. 	Raj further argues that Florida law does not require
separately 	allocated 	consideration. 	Raj 	asks 	this 	court 	to 	reverse
summary judgment and “remand for a merit-based factual determination.”
The standard of review for an order granting summary judgment is de
novo. 	Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126,
130 (Fla. 2000). 	Summary judgment is proper where “the movant shows
that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” 	Fla. R. Civ. P. 1.510(a); see also
Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
“A right of first refusal is a right to elect to take specified property at
the same price and on the same terms and conditions as those continued
in good faith offer by a third person if the owner manifests a willingness to
accept the offer.” 	Steinberg v. Sachs, 837 So. 2d 503, 505 (Fla. 3d DCA
2003) (citation omitted). 	A contractual right of first refusal must be
supported by consideration to be enforceable. See Sherman v. Lynch, 242
So. 2d 799, 800 (Fla. 3d DCA 1970).
We find the trial court erred in granting summary judgment because it
misapplied the law in finding that consideration for the right of first refusal
must be separately allocated. The trial court found no separately allocated
consideration in the contract for sale and purchase or in the addendum.
However, the addendum, which contained the right of first refusal for the
1850 	property, 	incorporated 	by 	reference 	the 	contract 	for 	sale 	and
purchase of the 1860 property. 	The addendum began by specifically
referencing the sale and purchase contract between Raj and Stuart for the
1860 property. 	The addendum then expressly stated that Stuart and Raj
made the right of first refusal to purchase the adjacent 1850 property “part
of the Contract” for the sale and purchase of the 1860 property. 	The last
signature on both the “counter offer” and addendum was the same date of
April 1, 2005. 	“The law is well established that two or more documents
executed by the same parties, at or near the same time, and concerning
the same transaction or subject matter are generally construed together
as a single contract.” 	Wilson v. Terwillinger, 140 So. 3d 1122, 1124 (Fla.
5th DCA 2014) (citation omitted).

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Because the addendum was part of the sale and purchase contract, the
$6,400,000 paid by Raj could be consideration covering both the purchase
of the 1860 property and the right of first refusal to purchase the adjacent
1850 property. Thus, no separate consideration would have been needed.
This conclusion is further supported by the fact that in May 2005, Stuart
and Raj signed a document entitled “Notice of Right of First Refusal,” which
was then recorded in the public records. 	The notice stated that Stuart
“granted [to Raj], for valuable consideration offered and accepted,” the
right of first refusal to purchase the 1850 property.
In finding a lack of consideration, the trial court also relied, in part, on
Raj’s deposition. 	The trial court emphasized portions of the testimony
wherein Raj agreed that he did not “pay any additional money for this right
of 	first 	refusal” 	and 	that 	there 	was 	“no 	addition[al] 	payment 	made.”
However, Raj also clarified these answers by explaining that he did not pay
any additional money because “[t]hat would be part of the contract that
we signed.” 	When further questioned, Raj again repeated that there was
no additional payment because “it was part of the contract.” 	The trial
court did not address these statements.
In discussing whether separate consideration is required, the parties
all rely on Steinberg, 837 So. 2d 503. 	Raj argues this case stands for the
proposition that the absence of separately allocated consideration is not
fatal, 	while 	the 	appellees 	argue 	Steinberg 	illustrates 	that 	separate
consideration is required. In Steinberg, Sachs sold stock to Steinberg with
the option of repurchasing the stock within two years. 	Id. at 504. 	More
than two years later, Sachs attempted to repurchase the stock. 	Id.
Steinberg nevertheless agreed to sell the stock to Sachs for $42,500 with
the condition that Steinberg retained a right of refusal to repurchase the
stock should Sachs decide to resell it in the future. Id. Steinberg filed suit
after learning Sachs had sold the stock without giving Steinberg the
opportunity to exercise his right of first refusal. 	Id. at 504-05. 	The trial
court concluded that the right of first refusal was invalid due to the lack
of consideration on the part of Steinberg. 	Id. at 505. 	The Third District
reversed, finding that the new consideration was the purchase price of
$42,500 plus the right of first refusal.
Thus, in Steinberg the consideration included both the purchase price
of the stock plus the right of first refusal. 	Like in Steinberg, here the
consideration could be the purchase price of the 1860 property plus the
right of first refusal as to the adjacent 1850 property. 	The only difference
between Steinberg and the instant case is that here the right of first refusal
pertained to a different parcel of property, whereas the right of first refusal

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in Steinberg involved the same stock. 	However, nothing in Steinberg
suggests that the property at issue must be the exact same property for
consideration to be valid. 	In other words, the sale property need not be
the same as the right of first refusal property. 	See also 3 Williston on
Contracts § 7:54 (4th ed.) (recognizing the rule that “one consideration
may support several promises,” for example “in a sale with a warranty” or
“where a business is sold for an agreed price . . . and the seller further
promises not to engage in competition with the buyer”); Texaco, Inc. v.
Giltak Corp., 492 So. 2d 812, 814 (Fla. 1st DCA 1986) (“When principal
and guaranty contracts are executed as part of the same transaction, the
consideration 	supporting 	the 	principal 	contract 	also 	supports 	the
guaranty.”).
Stuart’s estate argues that under the tipsy coachman rule, this court
can affirm because (1) Raj failed to timely exercise his right of first refusal,
and (2) Raj’s specific performance claim is time-barred. However, the trial
court specifically denied summary judgment on these grounds, finding
that “deficiencies in the record” and “undeveloped factual circumstances”
precluded the court from determining whether written notice was given to
Raj and when the one-year statute of limitations was triggered. 	Based on
the undeveloped record, we are unable to apply the tipsy coachman
doctrine. 	See State Farm Fire & Cas. Co. v. Levine, 837 So. 2d 363, 365
(Fla. 2002) (“[T]he key to applying the tipsy coachman doctrine is that the
record 	before 	the 	trial 	court 	must 	support 	the 	alternative 	theory 	or
principle of law. On that basis, the doctrine cannot be applied in this case
because the record does not provide an adequate basis for us to reach
such materiality conclusion as a pure matter of law.”) (citations omitted).
In conclusion, the trial court erred in granting summary judgment
because the law does not require that consideration for a right of first
refusal be separate and distinct from the contract for sale and purchase.
Thus, we reverse and remand for further proceedings consistent with this
opinion.
Reversed and remanded for further proceedings.
GERBER and K LINGENSMITH, JJ., concur.
* 	* 	*
Not final until disposition of timely-filed motion for rehearing.