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ARNHOLD v. OCEAN ATLANTIC WOODLAND CORP.

United States District Court, Northern District of Illinois, Eastern Division


February 28, 2001

ELDA ARNHOLD, AND BYZANTIO, LLC, PLAINTIFFS,
v.
OCEAN ATLANTIC WOODLAND CORPORATION, DEFENDANT.

The opinion of the court was delivered by: Keys, United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant Ocean Atlantic Woodland Corporation's ("Ocean Atlantic") Motion to Enforce Settlement Agreement. Because the Court finds that ocean Atlantic breached a material term of the Settlement Agreement, and for the reasons set forth below, Ocean Atlantic's Motion is denied with prejudice. Furthermore, the Court finds that the Settlement Agreement, entered into between the parties on October 26, 2000, has been properly terminated, pursuant to its terms, and accordingly, Ocean Atlantic has no rights with respect to the Property at issue in the case sub judice.

FACTUAL BACKGROUND

This controversy illustrates the truth inherent in the cliche: "There are two sides to every story." After reading Ocean Atlantic's Memorandum in Support of its Motion To Enforce Settlement Agreement ("Def.'s Memo."), the Court was led to believe that there was no significant context to paragraph 15*fn1 of the October 26, 2000 Settlement Agreement, and that, therefore, Ocean Atlantic's noncompliance with the unambiguous terms of this paragraph was merely technical, and certainly not a material breach. However, after reading Plaintiff's Response, and carefully observing the testimonial demeanor of the witnesses at the February 14-15, 2001 hearing, the Court finds that paragraph 15 was not drafted in a vacuum, but rather has an almost four-year contentious history, and was certainly an essential (if not "the" essential) term of the Settlement Agreement.

While Ocean Atlantic requests the Court to enforce a Settlement Agreement that was entered into between the parties on October 26, 2000, the parties' real controversy, undisputedly, began in August 1997. This almost four-year raging battle, culminating in the year 2000 Settlement Agreement, concerns the purchase and sale of a certain parcel of farm land containing approximately 280.27 acres of land located in Plainfield Township, Will County, Illinois (hereinafter referred to as the "Property"). fn order to fully understand the context surrounding the 2000 Settlement Agreement, it is necessary to give a brief synopsis of the ongoing disputes between the parties.

A. The Context Behind the Year 2000 Settlement Agreement

The Plaintiffs are Elda Arnhold, a 78-year-old woman and life-long farmer who owns and lives on her family farm outside of Plainfield, and Frank Argoudelis, also a life-long farmer, and his family ("Byzantio) who own a farm adjoining the Arnhold farm. On August 6, 1997, the Arnhold and Argoudelis families (hereinafter referred to collectively as the "Sellers" or "Plaintiffs") entered into a contract to sell their farm land (i.e. the Property) to Ocean Atlantic, a large land development company, for the purchase price of $7,560,000. This original contract contemplated an initial closing by November, 1997, and required that the initial closing, or specified conditions for closing, occur no later than August 6, 1998, or either party would have the right to terminate the contact.*fn2

Not surprisingly, the First Closing did not occur on August 6, 1998. According to Plaintiffs, Ocean Atlantic did not work diligently to facilitate closing and, consequently, failed to meet the deadlines set forth in the contract. Ocean Atlantic, on the other hand, claims that Plaintiffs refused to cooperate with needed steps to facilitate the First Closing.*fn3 Despite the abundant hearing testimony concerning these issues it is not germane to the present controversy as to whom was at fault in these initial disagreements. The critical point is that, in 1998, the parties' business relationship deteriorated, and the First Closing did not occur. (Tr. at 100.)*fn4

Nevertheless, the parties agreed to a series of date extensions, which were embodied in the First Amendment, executed on November 10, 1997*fn5 (Plaintiff's Exh. 2*fn6), and then a Second Amendment, executed on or about April 14, 1999 (Plaintiff's Exh. 1). The Second Amendment extended the First Closing date to no later than November 30, 1999, but, once again, the First Closing did not occur by this date. According to Plaintiffs, Ocean Atlantic failed to abide by its promises and obligations, for example, by failing to seek final engineering approval from the Village of Plainfield, which would have triggered a mandatory closing date within 30 days thereafter. Conversely, on or about November 8, 1999, Ocean Atlantic maintained that the Village of Plainfield had imposed, on August 23, 1999, a moratorium on sewer permits until December 2001, which necessitated an extension of the November 30, 1999 closing date.*fn7

Believing that Ocean Atlantic was concocting yet another delay tactic, on November 22, 1999, Plaintiffs filed a lawsuit in federal court for declaratory judgment that the contract would be terminated if the First Closing did not occur by November 30, 1999, pursuant to the Second Amendment. Ultimately, Judge Holderman denied Plaintiffs' summary judgment motion, and in the Fall of 2000, the parties settled the lawsuit by entering into the October 26, 2000 Settlement Agreement (also referred to as the Third Amendment), the relevant document at issue in this case.

B. The Settlement Agreement and Ensuing Controversy

A few days before the scheduled trial, the parties entered into the Settlement Agreement, and Plaintiffs dismissed their lawsuit with prejudice. Although Plaintiffs and Ocean Atlantic insist that different parts of the Settlement Agreement were material and significant, the Court finds, based on the almost four-year contentious background between the parties, the circumstances surrounding the execution of the Settlement Agreement (including letters written back and forth between the parties in negotiating the Settlement Agreement (discussed infra)), and the testimony at the hearing, that the following were material aspects of the Settlement Agreement: (1) there would be one closing for the full purchase price of the Property (as opposed to three, as the initial contract had contemplated); (2) there would be a final, "drop-dead" date for closing, the language of which was encompassed in paragraph 15; and (3) the issue of the sewer moratorium would be waived.

According to Plaintiffs, they would not have entered into the Settlement Agreement — and, correspondingly, dismissed their lawsuit with prejudice — if Ocean Atlantic had not agreed to paragraph 15, which stated in no uncertain terms that January 25, 2001 would be a final, absolute date for closing. (Tr. at 305-06, 313.) After an almost four-year relationship, involving several ineffectuated closing dates, two amendments to the initial contract, and two federal lawsuits, Plaintiffs wanted the certainty that by one particular date (in this case, January 25, 2001)*fn8, either a closing would occur, or the contract would be terminated. Indeed, the whole premise behind their lawsuit for declaratory judgment stemmed from Ocean Atlantic's failure to close by November 30, 1999, as set forth in the Second Amendment. Therefore, it is entirely believable that Plaintiffs would not have settled the lawsuit — and dismissed it with prejudice — unless they were guaranteed an absolute, final, "drop-dead" date for closing in the Settlement Agreement.

Besides the unambiguous language of paragraph 15, Plaintiffs' insistence on a final, "drop-dead" closing date can be gleaned from the correspondence between the parties during the settlement negotiations. For example, in a September 7, 2000 letter from William Farrell, counsel for Ocean Atlantic, to Theodore Poulos, counsel for Plaintiffs, Mr. Farrell acknowledged that Plaintiffs would consider settlement only if the agreement included: (1) an amendment to the existing contract setting a closing date or dates without the possibility of extensions or delays; (2) the absolute right of Plaintiffs to terminate the contract in the event of failure to close on the set closing date(s); (3) that such closing date(s) would occur "quickly"; and (4) that payment of the full purchase price would be made at closing.*fn9 (Pl.'s Response, Exh. D, Sept. 7, 2000 letter; Tr. at 308) In this same letter, Mr. Farrell represented that Ocean Atlantic would agmec to settlement on terms that included the following:

Ocean Atlantic will agree that failure to close within 45 days*fn10 of the execution of the amendment [i.e. settlement] shall result in Plaintiffs' unequivocal right to terminate the contract.

Id. As the parties finalized the specific terms of the Settlement Agreement, the significance of the "drop-dead" date for closing continued to be emphasized. In an October 23, 2000 letter to Ocean Atlantic's counsel, for instance, counsel for Sellers stated that an essential and material term of any settlement was that "[i]f Ocean Atlantic, for any reason whatsoever, fails to close on the property within 90 days from the execution of [the] settlement document, it shall forfeit arty and all rights it may have to purchase the property." (Pl.'s Response, Exh. E, Oct. 23, 2000 letter.) Significantly, in response, Ocean Atlantic sent Sellers a draft settlement agreement, which contained the precursor to paragraph 15 of the final Settlement Agreement, which stated:

13. If Closing has not occurred on or before January 25, 2001, for any reason other than Seller's failure to participate in a scheduled Closing, the Contract, as amended, shall terminate. It is intended by Sellers and Purchasers that January 25, 2001 shall be an absolute final date for Closing and control over any other provision herein.

(Pl.'s Response, Exh. F. Oct. 23, 2000 draft settlement agreement.) By comparison, paragraph 15 of the final Settlement Agreement reads:

It is intended by Sellers and Purchasers that January 25, 2001 shall be an absolute final date for Closing subject only to Sellers' default, as found by the Court, or Sellers' failure to participate in or fully cooperate with Purchaser to effectuate the Closing on the date selected by Purchaser, as found by the Court. If Closing has not occurred on or before January 25, 2001, for any reason other than Sellers' default, as found by the Court, or Sellers' failure to participate in or fully cooperate as set forth herein, as found by the Court, Purchaser shall have no right to purchase or otherwise encumber the Property or Homestead parcel, the Contract shall be terminated and Purchaser shall have no rights with respect to the Property or Homestead Parcel.

(October 26, 2000 Settlement Agreement at ¶ 15.)

Therefore, Ocean Atlantic helped draft the very language that it now attacks as not material to the Settlement Agreement. Clearly, Ocean Atlantic knew — from the settlement negotiations — that a final, "drop-dead" closing date had to be an integral part of any final settlement agreement Recognizing this, Ocean Atlantic drafted language that it hoped would motivate — or entice — Plaintiffs into settling the lawsuit.

On January 3, 2001, consistent with the provisions set forth in the Settlement Agreement, Ocean Atlantic selected January 24, 2001 — one day before the "drop-dead" date provided for in the Settlement Agreement — as the closing date. Although Ocean Atlantic had approximately seventy specific days from which to choose for its closing (before January 25, 2001), it chose the day before the last to commence closing.*fn11

At all times, Plaintiffs made it explicitly clear that the closing needed to be finalized by the "drop-dead" date of January 25, 2001, as set forth in the Settlement Agreement. In a January 22, 2001 letter, Plaintiffs' counsel reaffirmed to Ocean Atlantic the significance of the "drop-dead" closing date: "If the closing does not occur in accordance with the terms of the settlement agreement, your clients will have no rights whatsoever to the property after January 25, 2001 as clearly spelled out in that same settlement agreement." (Pl.'s Response, Exh. J, Jan. 22, 2001 letter from Theodore Poulos to William Farrell.) Significantly, Ocean Atlantic — on that same day — acknowledged, by letter, the importance of closing on or before January 25, 2001: "Please be advised that Ocean Atlantic will fully participate in the scheduled closing this Wednesday [January 24, 20011 at 9:00 a.m. pursuant to the settlement agreement." (Pl.'s Response, Exh. K, Jan. 22, 2001 letter from William Farrell to Theodore Poulos.)

Nonetheless, closing did not occur on January 24, 2001 — the day selected by Ocean Atlantic — nor January 25, 2001, the absolute, final "drop-dead" date in the Settlement Agreement. It is undisputed that Plaintiffs (i.e. the Sellers) were entirely ready, willing and able to close on January 24, 2001.*fn12 They arrived at 9:00 a.m. at Chicago Title and trust Company in Wheaton, Illinois to close pursuant to the Settlement Agreement. On January 24, 2001, at 7:00 p.m., Plaintiffs were informed that the closing would not occur, as the funds would not be deposited in escrow that day. (Tr. at 322.) Yorkville National Bank — Ocean Atlantic's lender — had refused to give Ocean Atlantic the necessary loan, until Ocean Atlantic provided additional security in the form of a written guarantee from a third-party entity located in New York City (Black Acre Capital Group). (Tr. at 71.) Consequently, because Ocean Atlantic had not perfected its security, the funds were not placed in the escrow account for disbursement on January 24th — the day Ocean Atlantic had selected for the closing — nor on January 25, 2001, the absolute, final "drop-dead" date for closing. *fn13

Ocean Atlantic fervently maintains that it worked diligently from January 24, 2001 to January 26, 2001 to effectuate the closing, and that the process was completed on January 25, 2001 — with one exception: disbursement of the purchase funds to Sellers was not possible until January 26, 2001.*fn14 On January 26, 2001, however, Plaintiffs informed Ocean Atlantic that they were terminating the Settlement Agreement pursuant to its terms in paragraph 15, and that Ocean Atlantic had forfeited all rights to the Property.

On Februaty 7, 2001, Ocean Atlantic filed its Motion to Enforce the Settlement Agreement, the present Motion before the Court. On February 13, 2001, Plaintiffs filed their Response, which provided the necessary background to the Settlement Agreement (and the other side to the stoty). On February 14 and 15, 2001, this Court held an evidentiary hearing, and heard from Mr. Farraguto, Ocean Atlantic's President, and Mr. Argoudelis, one of the Plaintiffs and an attorney of record for Plaintiffs. Both parties filed post-hearing briefs. The Court, after fully considering the briefs and the hearing testimony, concludes that Ocean Atlantic breached a material term of the Settlement Agreement, and accordingly, has forfeited all rights to the Property.

Before delving into the legal analysis, the Court will first comment on the hearing testimony provided by Mr. Farraguto and Mr. Argoudelis. After carefully observing the testimonial demeanor of both witnesses, the Court finds that the testimony of Mr. Farraguto was largely incredible,*fn15 and that the testimony of Mr. Argoudelis was entirely credible and consistent with the other evidence before the Court. Therefore, to the extent Mr. Farraguto and Mr. Argoudelis' testimony conflicts, the Court credits Mr. Argoudelis' testimony.

ANALYSIS

A motion to enforce a settlement agreement is essentially the same as a motion to enforce a contract. Capri Sun, Inc., v. Beverage Pouch Systems, Inc., No. 97 C 1961, 2000 WL 1036016, at *2 (N.D.Ill. July 21, 2000) (citing Allstate Financial Corp. v. Utility Trailer of Illinois, Inc., 936 F. Supp. 525, 527 (N.D.Ill. 1996)). Assuming that it has jurisdiction to enforce a settlement agreement,*fn16 a federal court will look to the applicable state law in construing the terms of the agreement. Id. In Illinois, ordinary contract construction rules apply to a settlement agreement. Id.

The crux of this case is whether paragraph 15 of the Settlement Agreement, which provides, in pertinent part, that, "January 25, 2001 shall be an absolute, final date for Closing" and that if "Closing has not occurred on or before January 25, 2001 . . . Purchaser shall have no right to purchase or otherwise encumber the Property", is a material part of the contract, thereby justifying non-performance by Plaintiffs, because of Ocean Atlantic's breach of that provision. See Arrow Master, Inc. v. Unique Forming Ltd., 12 F.3d 709, 714 (7th Cir. 1993) (stating black letter law that, in Illinois, only a material breach of a contract justifies non-performance by the other party). Under Illinois law, in determining whether failure of performance constitutes a material breach of the contract provision, the court asks whether performance of that provision was a sine qua non of the contract's fulfillment. Id. at 715; (citation omitted). In other words, would the parties have entered into the contract (in this case, the Settlement Agreement) without the particular provision at issue in the contract (in this case, paragraph 15).

In the case sub judice, there is no question that Plaintiffs would not have entered into the Settlement Agreement without paragraph 15, which unequivocally states that, "[i]t is intended by Sellers and Purchaser that January 25, 2001 shall be an absolute final date for Closing." (Emphasis added.) Indeed, it is black letter law in Illinois that "the primary object in construing a contract is to give effect to the intention of the parties." Arrow Master, supra at 713 (citation omitted) (emphasis added). And, in the case at bar, paragraph 15 clearly states the intention of the parties. In fact, Mr. Farraguto, despite his best efforts, admitted as much at the hearing, conceding that one of the three reasons for the Settlement Agreement was for the closing to occur on or before, January 25, 2001. (Tr. at 116.) Importantly, there is no law in Illinois that a contract cannot have more than one material provision.

Additionally, assuming that the language of paragraph 15 is ambiguous (which it is not), the prior dealings and almost four-year contentious history between the parties illustrates that paragraph 15 was a material part of the contract. For instance, during settlement negotiations, the correspondence between the parties (discussed supra) a clearly illustrates that Plaintiffs were primarily concerned with having a final absolute date to close, as their lawsuit for declaratory judgment (which they subsequently dismissed with prejudice because of the Settlement Agreement) was solely concerned with Ocean Atlantic's refusal to close by November 30, 1999, pursuant to the Second Amendment. Quite telling is that Ocean Atlantic helped draft the precursor to paragraph 15, using language such as: "It is intended by Sellers and Purchasers that January 25, 2001 shall be the absolute final date for Closing and control over any other provision herein." (Pl.'s Response, Exh. F. Oct. 23, 2000 draft settlement agreement.)*fn17

Ocean Atlantic, and Mr. Farraguto, apparently believe that the failure of paragraph 15 to state the talismanic phrase "time is of the essence" is significant, and defeats the otherwise unambiguous language of the the parties. (Tr. at 132-33, 167, 181, 255.) However, this argument is simply not the law in Illinois. Indeed, it is axiomatic under Illinois law that "the precise phraseology is not important, and the intention of the parties as expressed by the agreement controls. Will v. Will Products, Inc., 109 Ill. App.3d 778, 65 Ill. Dec. 430, 441 N.E.2d 343, 346 (1982); see also Anest v. Bailey, 198 Ill. App.3d 740, 144 Ill.Dec. 813, 556 N.E.2d 280, 283 (1990) ("[T]he court's inquiry cannot end with the mere recitation of contractual language stating that time is of the essence of the contract. As we have previously noted, the extent to which such a contractual provision should be strictly enforced depends upon the parties intentions, which are to be determined both by the language used in the agreement and the circumstances surrounding the agreement."); Janssen Bros., Inc. v. Northbrook Trust & Sav. Bank, 12 Ill. App.3d 840, 299 N.E.2d 431, 434 (1973) ("The settlement agreement before us contained no express provision that time was of the essence, but the precise phraseology is not controlling. Parties to a contract may make timely performance material even though there is no express provision to that effect."); O'Malley v. Cummings, 86 Ill. App.2d 446, 229 N.E.2d 878, 880 (1967) ("[T]he parties to a contract may make timely performance material even though there is no express provision to that effect.").

Therefore, even if the Settlement Agreement had contained the magical phrase "time is of the essence", this would not be dispositive or end the inquiry, as the Court would still need to look at the parties' intentions, the language of paragraph 15, and the surrounding circumstances — all of which, in this case, clearly show that time really was of the essence. Indeed, it is hard to imagine alternative language for paragraph 15 that could be clearer. Even Mr. Farraguto, again despite his best efforts, reluctantly admitted that the phrase "time is of the essence" actually means "absolute final dates." (Tr. at 184.)*fn18

Ocean Atlantic relies on easily distinguishable cases to argue that its breach was non-material and should not excuse Plaintiffs' performance. For instance, Ocean Atlantic relies on Intervisual Communications, Inc. v. Volkert, 975 F. Supp. 1092, 1100 (N.D.Ill. 1997), for the well-known proposal that a minor, non-material breach does not preclude specific performance of contractual duties. But, Intervisual, as with all the cases Ocean Atlantic cites, must be considered in its appropriate context.*fn19 In Intervisual, this Court concluded that the plaintiff had waived his right to assert a breach based on the late payment of royalties, because he had acquiesced to late payments in the past. Id. at 1101. In the case sub judice, however, there is no issue of waiver as a final closing date has always been a principal concern of Plaintiffs, as evidenced by the Second Amendment, declaratory judgment action, and Settlement Agreement — as well as the correspondence (discussed supra) written just days before January 25, 2001. Additionally, in Intervisual, this Court held that, even if there had been no waiver, it was highly unlikely that the agreement would have turned on the condition that all royalty payments be made within thirty days. Id. at 1101. Again, in the case at bar, it is quite apparent that Plaintiffs would never have dismissed their lawsuit with prejudice, and entered into the Settlement Agreement, if paragraph 15 — providing for a final, absolute closing date — had not been included.

Similarly, Chariot Holdings, Ltd. v. Eastmet Corp., 153 Ill. App.3d 50, 106 Ill. Dec. 285, 505 N.E.2d 1076 (1987) is distinguishable from the present controversy. In Chariot Holdings, although there was a contract provision that stated that closing must occur by a certain date or termination would result, there was no long and protracted relationship between the parties, where the closing date had been extended several times over the course of almost four years. Furthermore, there was no evidence that the closing date was an essential part of the contract.*fn20

Finally, Ocean Atlantic asks the Court to apply the four prong-test often used in Illinois courts to determine materiality: (1) whether the breach defeated the bargained-for objective; (2) whether the breach caused a disproportionate prejudice to the non-breaching party; (3) whether custom and practice show the breach to be material; and (4) whether allowance of reciprocal non-performance would result in an unreasonable and unfair advantage to either party. See Arrow Master, 12 F.3d at 715 (citation omitted). These factors, however, do not detract from the fundamental materiality inquiry: whether the parties would have entered into the contract without the particular provision at issue. Id. at 714; see also Francorp, Inc. v. Siebert, 126 F. Supp.2d 543, 547 (N.D.Ill. 2000) ("The materiality of a breach depends on the 'inherent justice of the matter,' and on whether 'the matter, in respect to which the failure of performance occurs, is of such a nature and of such importance that the contract would not have been made without it.'") (citation omitted).

Nonetheless, even if the Court were to apply these four factors, three of the four undoubtedly favor Plaintiffs. First, Ocean Atlantic's failure to complete closing by January 25, 2001 — the absolute, final date provided for in the Settlement Agreement — defeated the bargained-for objective of the contract. While Ocean Atlantic, essentially, argues that most of the objectives were met (i.e. a "fairly quick" closing, the purchase price paid at one — instead of three — closings, a waiver of the sewer moratorium), the overriding point is that all of the material objectives were not met As explained in depth supra, Plaintiffs would not have entered into the Settlement Agreement without the assurance of the finality provided by paragraph 15.

The second factor arguably favors Ocean Atlantic, as Plaintiffs were not financially prejudiced by the one-day delay in payment, while Ocean Atlantic forfeits, at a minimum, the $150,000 spent on the storm water detention easement and the $100,000 in earnest money.*fn21 Nonetheless, the Court does not find this prejudice to outweigh the other factors, or to negate the fundamental question regarding materiality: would Plaintiffs have dismissed their lawsuit and entered into the Settlement Agreement without the inclusion of paragraph 15.

Furthermore, although equity does abhor forfeitures, Illinois law does allow forfeiture where the contract provides for it, as the Settlement Agreement in this case does.*fn22 See, e.g., Hettermann v. Weingart, 120 In.App.3d 683, 76 Ill.Dec. 216, 458 N.E.2d 616, 620 (1983) ("although courts of equity abhor forfeitures, where a forfeiture has been declared in the manner prescribed by the parties to a contract the court will give effect to the contract.") (quotations and citations omitted); Kirkpatrick v. Petreikis, 44 Ill. App.3d 575, 3 Ill.Dec. 281, 358 N.E.2d 679, 680 (1976) (contemplating forfeiture where there is a valid contract containing forfeiture clause and the buyer is found actually in default).

The third factor overwhelmingly favors Plaintiffs. The "custom and practices" prong only strengthens Plaintiffs' case, as the "custom and practice" — or prior dealings of the parties — was that a final, "drop-dead" closing date was the most essential priority for Plaintiffs, given the contentious, almost four-year history, two federal lawsuits, and several date extensions. Furthermore, Ocean Atlantic's assertion that a "one-day delay in the performance of a complex commercial real estate transaction is not an unusual occurrence and, therefore, will not normally preclude specific performance" (Def.'s Post-Hearing Brief at 7) is completely disingenuous, because, in this particular case, the unambiguous language of paragraph 15 (as well as the prior dealings) made a "one-day delay" significant.

Finally, the Court does not find that non-performance by Plaintiffs would result in an unreasonable and unfair advantage to Plaintiffs. Although Ocean Atlantic argues that it would suffer "unconscionable prejudice," the Court is not persuaded by that argument. Ocean Atlantic is a sophisticated and experienced land development company, which has been represented by counsel since the beginning of this controversy in 1997. Ocean Atlantic made this same "prejudicial" argument in its 1998 lawsuit against Plaintiffs for specific performance (a lawsuit that it eventually volutntarily dismissed). Indeed, paragraph 20 of Ocean Atlantic's Complaint for Specific performance in that case references its "extensive expenditure of time, effort and money to prepare the Property for development. It is now 2001, and Ocean Atlantic is, essentially, making the same argument. If Ocean Atlantic did not want to lose its investment, then it either should not have agreed to paragraph 15 of the Settlement Agreement, or it should have complied with paragraph 15 of the Settlement Agreement (or at least selected a closing date that was not one day before the final, "drop-dead" closing date).

Furthermore, it is immaterial that Plaintiffs might (and most likely will) be able to sell the Property for considerably more money than the agreed-upon purchase price. Indeed, Plaintiffs' reaping the benefits of Ocean Atlantic's efforts to improve the land is a risk that Ocean Atlantic voluntarily undertook when it agreed to — and then breached — paragraph 15 of the Settlement Agreement. The Court sees no equitable impediment to Plaintiffs asking Ocean Atlantic to, essentially, rebid on the Property. (Tr. at 241, 265.) After all, the contract, as of the date of this opinion, has been legally terminated, it appeal's that, based entirely on Ocean Atlantic's conduct in this case, it will not be realizing the 15-20 percent profit it typically makes on its ventures. (Tr. at 122.)

CONCLUSION

For the foregoing reasons, the Court denies Defendant's Motion to Enforce Settlement Agreement, and declares that the Settlement Agreement has been properly terminated, and that Defendant has no rights with respect to the Property.

IT IS THEREFORE ORDERED that:

Defedants Motion to Enforce Settle ment Agreement, be, and the same hereby is, DENIED.


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