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Filing # 183500571 E-Filed 10/09/2023 09:32:55 AM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR
CHARLOTTE COUNTY, FLORIDA
KSD PARTNERS, LLC, an
Ohio limited liability company,
Plaintiff,
vs. CASE: 2023-002230-CA
PUNTA GORDA HEALTH
INVESTORS, LLC, a Florida limited
liability company and FILEMAN LAW
FIRM, P.A., a Florida corporation, as escrow agent,
Defendant.
MOTION FOR SUMMARY JUDGMENT
COMES NOW, Plaintiff, KSD PARTNERS, LLC. (“KSD”) by and through its
undersigned counsel and hereby file its, Motion for Summary Judgment, and in support thereof
states as follows:
GENERAL BACKGROUND AND UNDISPUTED FACTS
1 Plaintiff, KSD, is an Ohio limited liability company which owned property in
Charlotte County, Florida, more specifically, at 1200 Socorro Drive, Punta Gorda, Florida 33950
(“Property”).
2 Defendant, Punta Gorda Health Investors, LLC, a Florida limited liability company
(“HEALTH INVESTORS”), is a Florida limited liability company, who contracted to purchase
property in Charlotte County, Florida.
3. Defendant, Fileman Law Firm. (“FILEMAN”), is a Florida professional law
corporation, acting in its capacity as escrow agent, holding funds in the amount of $100,000.00 for
the benefit of Plaintiff and Defendant.
4 Upon information and belief Defendant, Fileman, was also acting as the attorney
for Defendant, Health Investors at all times material.
Page 1 of 17
5 KSD and Health Investors entered into a Contract for Sale and Purchase whereby
KSD was going to sell and Health Investors was going to purchase the Property. A copy of the
Contract is attached hereto as Exhibit “A”.
6 Pursuant to paragraph 4(a) of the Contract, Health Investors was to deliver a deposit
in the amount of $100,000.00 to Fileman.
7 The Contract provided Defendant, Health Investors with the opportunity to do a due
diligence investigation and provided a time period of thirty-seven (37) days to undertake such due diligence.
8 Paragraph 28(n) of the contract also explained, that unless otherwise indicated, days
would be determined by business days.
9 Due diligence began on the effective date of the Contract; the contract explains that
the “Effective Date” shall be the date when the last one of Seller and Purchaser has executed and
delivered this Contract.”
10. The Contract Effective Date was March 25, 2022.
11. Pursuant to paragraph 6(b) and 6(c) of the Contract, Defendant, Health Investors,
(“Purchaser”) had the right to terminate the contract by notifying Plaintiff, KSD, in writing, of its
intent to cancel the Contract. The exact verbiage is as follows:
6. INSPECTION PERIOD;
&) Purchaser shall have a period commencing on the Effective and
terminating thirty seven (37) days thereafter (the “Inspection Period”) within
which to determine, in its sole discretion, whether the Property is suitable for
Purchaser's use. In the event that any aspect of the Property is not acceptable to
Purchaser, or should Purchaser decide not to proceed with the purchase of the
Property for any or no reason whatsoever, then Purchaser may terminate this
Contract at any time within the Inspection Period by providing written notice to
either Seller or Seller's attomey, in which event this Contract shall be deemed
terminated,
Page 2 of 17
© Purchaser shall have the right, at Purchaser's sole discretion, for any
reason or for no reason whatsoever, to terminate this Contract any time up to the
end of the Inspection Pericd by giving written notice of termination to Seller, or
Seller's attomey, up to the end of the Inspection Periad, in which event the Non-
Refundable Deposit shall be released to Seller (except as provided in Section 4(a)
above), the Purchaser
shall receive a refund
of the Refundable Deposit, end the
parties shall be relieved from any further obligations hereunder and of any and all
liability to each other, subject to Purchaser's return of the Seller Deliveries to
Selter.
12. Purchaser, as clearly identified in the contract is Punta Gorda Health Investors,
LLC.
13. Further, paragraph twenty-one (21) of the contract, provides notices could also be
provided by the attorneys for the parties, and specifically indicates the following in Section twenty-
one (21):
“Attorneys for the parties are authorized to send notices and demands on behalf
of their respective clients.”
14. Upon information and belief, Defendant Fileman was at all times material, acting
as the attorney for Defendant, Health Investors, as it relates to the certain Contract for Sale
and Purchase identified in paragraph five (5) above.
15. The last day of due diligence period, based upon the time set forth in the contract
and the application of the business day section of the contract, would have been May 17, 2022.
16. Defendant, Health Investors, at all times material to the contract, Plaintiff, KSD,
was ready willing and able to convey title to the Property to Defendant, Health Investors. Pursuant
to Section 6(b).
17. Defendant, Fileman, on behalf of Defendant, Health Investors, acting not only as
escrow agent, but attorney for Defendant, Health Investors, prior to the due diligence period,
on May 10, 2022, provided an email to Plaintiff, KSD, a copy of which is attached hereto as
Exhibit “B” which stated in pertinent part:
Page 3 of 17
“J will need to know who will be signing for the seller so that I can finlalize
(sic) documents on my end of things.”
18. At no time during the due diligence time period of the contract has Plaintiff, KSD,
been notified of the termination of the contract rights by either a) Defendant and contract
Purchaser, Health Investors or b) Defendant, Fileman as the authorized agent and attorney for
Defendant.
19. Further, at no time prior to the end of the due diligence or prior to the end of the
closing date, which was thirty (30) days after the due diligence, or June 28, 2022, did
Defendant, Health Investors, or Defendant’s legal counsel or the escrow agent, Defendant,
Fileman, ever notify Plaintiff that it would not close the transaction.
20. Defendants, Health Investors and Fileman were completely silent as to their
position and rather only provided Plaintiff, KSD, as seller with notification, via the e-mail
dated May 10, 2022, that a closing would be taking place.
21. It should be noted and as an important point, there has been no assignment of
contract rights by Punta Gorda Health Investors.
22. Once the closing failed to take place, Plaintiff, KSD, notified Defendant, Fileman,
as escrow agent and attorney for Defendant, Health Investors, that Buyer closing was in default
and Plaintiff, as Seller, demanded the deposit.
23. In order for Plaintiff to mitigate its damages, Plaintiff ultimately sold the property
to a third-party purchaser for a price less than what they would have received by selling it to the
Defendant, Health Investors.
24. In response to the demand for the deposit, Defendant Fileman, as attorney and
escrow agent for Defendant, Health Investors, requested that Plaintiff release the deposit and
forwarded Plaintiffs a termination and release of deposit to Defendant, Health Investors. The
Page 4 of 17
demand notice and the termination deposit specifically identify the Purchaser as Defendant, Punta
Gorda Health Investors, LLC, (although incorrectly referenced as, “Buyer”).
25. Attached hereto as “Exhibit C” is the Termination Agreement, identifying the
Buyer as Punta Gorda Health Investors, LLC, indicating in the fourth recital:
“WHEREAS, Buyer gave Seller notice of termination of the contract and request for
the release of the deposit prior the end of the inspection period.”
26. It is undisputed in the record, and supported by the Affidavits of both the Seller and
the Seller’s attorney, filed contemptuous with this Motion, that there was never any notification
issued for termination of the contract by either the Purchaser, Punta Gorda Health Investors, LLC
or their attorney, Defendant Fileman as required by Section six (6) or Section twenty-one (21)
under the contract.
27. It should be noted that Punta Gorda Health Investors, LLC again is the Buyer and
Punta Gorda Health Investors has stated under oath in this case and pursuant to the interrogatories
that there has been no assignment of any rights under the contract. Accordingly, no third party,
including third party, Meridian Health Investors, LLC has ever been authorized by assignment or
otherwise to act on behalf of the Defendant, Punta Gorda Health Investors as the Buyer. See
Interrogatory #14:
14.Did you get an authorization from Plaintiff to assign any contract rights to 3rd
party Meridian Senior Living, LLC?
ANSWER: Per the contract no authorization is required.
28. Rather than return the deposit, Defendant, Fileman, on behalf of Defendant, Health
Investors, indicated that proper notification was given, based upon a third-party providing
notification of termination of the Contract to Plaintiff, KSD.
Page 5 of 17
29. It should be noted that a stranger to the contract, third-party, Meridian Senior
Living, LLC, issued notification to Plaintiff to terminate the contract. A copy of the termination is
attached hereto as Exhibit “C”.
30. The Court need only examine the termination letter, attached hereto as “Exhibit C”,
to identify numerous and fatal errors contained in the letter, as follows:
a. The letter references the following Contract for Sale and Purchase:
RE: Contract for Purchase and Sale executed March 28, 2022 (the “PSA”), between KSD
PARTNERS, LLC (“Seller”) and Meridian Senior Living, LLC (“Purchaser”),
covering the property located at 1200 Socorro Dr,. Punta Gorda, Florida 33950 (the
“Property”)
Clearly the reference in the initial portion of the letter, identifying the “Contract For Purchase and
Sale” is not even a contract for sale and purchase before this court, but rather, some type of contract
for sale and purchase between the Plaintiff and Meridian Senior Living, LLC., which does not
exist.
b It is undisputed that no contract for sale and purchase was ever entered into
between Plaintiff and Meridian Senior Living, LLC., nor was there ever any assignment of a
contract entered into between KSD and the Defendant, to Meridian Senior Living, LLC as
established by the interrogatories. In addition, the affidavits of the Plaintiff's representative clearly
indicate that they had no idea who Meridian Senior Living was.
¢. Further, nothing in the letter indicates that the stranger to the contract, Meridian
Senior Living, LLC., was acting on behalf of the purchasers.
d Additionally, this letter was not issued by the Purchaser, Defendant Health
Investors or their legal counsel is required by Section six (6) or Section eleven (11) of the contract
which clearly and unambiguously defined that only the purchaser, Punta Gorda Health Investors
Page 6 of 17
or the attorney, had the authority to act on behalf of the purchaser, Defendant, Punta Gorda Health
Investors, LLC.
€. In addition, the demand for the deposit was to return the deposit to the “Purchaser”,
identified in the contract as Meridian Senior Living, LLC which absolutely is not allowed for under
the contract nor provided for in as much as Meridian Senior Living is not only a stranger to the
contract, but had no authority to act or receive deposits on behalf of the purchaser, even if it was
entitled to such deposits.
f. There was no reference to any claim that Meridian Senior Living, LLC. was an
assignee of the contract and in fact, this has been established as a matter of law by the sworn
response of the Defendants that no such assignment took place. See Interrogatory #15:
15.Did Punta Gorda Health Investors, LLC assign the contract rights to Meridian
Senior Living, LLC?
ANSWER: No.
g Merdian Senior Livng (sic), LLC, as identified in the signature block is misspelled.
31. The letter (Exhibit “C’”) sent by a third-party stranger to the contract did not in any
way indicate that the letter was being sent on behalf of Purchaser, Defendant, Health Investors and
further that such party had the authorization to act on behalf of Defendant, Health Investors, or
Defendant. Fileman.
32. As of the date of this pleading, there still has never been any notification given to
Plaintiff, KSD, that such third-party had any authority whatsoever to act on behalf of Defendant,
Health Investors.
Page 7 of 17
33. Further and as supported by the Affidavits of Plaintiff representative and Plaintiff's
counsel, there never has been any notification issued for a termination of the contract at any time
by the Defendant’s counsel or by the Defendant’s Purchaser.
34. In fact, the introductory paragraph of the letter (Exhibit “C”) states only the
following: “Reference is made to the PSA.”
35. It is undisputed that no such formal notification of termination of the Contract was
ever provided by Defendant, Health Investors, as Purchaser, under the Contract nor was any
notification of termination ever provided to Plaintiff, KSD, by Defendant, Fileman, legal counsel
and escrow agent for Defendant, Health Investors.
36. The Court also has been asked to take judicial notice of the significant amounts of
wire fraud and other cyber security issues involving real estate transaction and funds held in escrow
accounts in Florida. Both the Florida Bar as well as numerous organizations have consistently
warned attorneys to be on the watch for hackers and cyber security and the Plaintiff has asked the
court to take judicial notice of this very common warning to all real estate attorneys.
37. Not only is the notification by Meridian Senior Living ineffective as a matter of
law to terminate the contract, it has significant, numerous red flags that should put all parties on
notice that they should disregard any conduct or activities by the stranger and that the $100,000
should not have been released to the stranger to the contract. This was not only for the legal reasons
set forth above, but as importantly, based upon warnings provided by the Florida Bar and more
specifically the September 20, 2023 Florida Bar News Journal article; “CyberAttacks on Law
Firms Are Up Sharply”.
Page 8 of 17
STANDARD OF REVIEW
Pursuant to Florida Rule of Civil Procedure 1.510(c), a motion for summary judgment
must:
“state with particularity the grounds upon which it is based and the
substantial matters of law to be argued and must specifically identify
any affidavits, answers to interrogatories, admissions, depositions,
and other materials as would be admissible in evidence ("summary
judgment evidence") on which the movant relies. ... The judgment
sought must be rendered immediately if the pleadings and summary
judgment evidence on file show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment
as a matter of law.”
The Supreme Court has held that there is “no express or implied requirement ... that the
moving party support its motion with affidavits or other similar materials negating the opponent’s
claim.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Rather, “the burden on the moving
party may be discharged by ‘showing’—that is, pointing out to the district court—that there is an
absence of evidence to support the nonmoving party’s case.” /d. at 325. Furthermore, summary
judgment should be entered “against a party who fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Jd. at 322.
The test for whether a genuine issue of material fact exists is to determine if “the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). “If the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.” Jd. at 249-50 (citations omitted). A party opposing
summary judgment “must do more than simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). “When opposing parties tell two different stories, one of which is blatantly contradicted
Page 9 of 17
by the record, so that no reasonable jury could believe it, a court should not adopt that version of
the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372,
380 (2007).
“One of the principal purposes of the summary judgment rule is to
isolate and dispose of factually unsupported claims or defenses, and
we think it should be interpreted in a way that allows it to accomplish
this purpose.” Celotex, 477 U.S, at 323-24.
LEGAL ARGUMENT
Based upon the undisputed facts, as set forth above, and the undisputed contractual
language, it is clear that from the plain and unambiguous reading of the contract, only the Purchaser
has a right to terminate the contract, specifically, Section 6 (b) and 6(c) of the Contract, indicates
as follows:
6. INSPECTION PERIOD:
(v) Purchaser shall have a period commencing on the Effective and
terminating thirty seven (37) days thereafter (the “Inspection Period”) within
which to determine, in its sole discretion, whether the Property is suitable for
Purchaser's use. In the event that any aspect of the Property is not acceptable to
Page 10 of 17
Purchaser, or should Purchaser decide not to proceed with the purchase of the
Property for any or no reason whatsoever, then Purchaser may terminate this
Contract at any time within the Inspection Period by providing written notice to
either Seller or Seller's attomey, in which event this Contract shall be deemed
terminated,
© Purchaser shall have the rigbt, at Purchaser's sole discretion, for any
reason or for no reason whatsoever, to terminate this Contract any time up to the
end of the Inspection Pericd by giving written notice of termination to Seller, or
Seller's attorney, up to the end of the Inspection Period, in which event the Non-
Refindable Deposit shall be released to Seller (except as provided in Section 4{a)
above), the Purchaser shall receive a refund of the Refundable Deposit, end the
parties shall be relieved from any further obligations hereunder and of any and all
liability to each other, subject to Purchaser's return of the Seller Deliveries to
Seller.
At no time during the due diligence, or, in fact, at any time from the date of the Contract
until the date of filing of this action has Plaintiff, KSD, been notified of the termination of the
contract rights by either a) Defendant, Health Investors “Purchaser” or b) Defendant, Fileman, as
the authorized agent and attorney for Defendant, Health Investors, as Purchaser.
Further, at no time prior to the end of the due diligence or prior to the end of the closing
date, which was thirty (30) days after the due diligence, or June 28, 2022, did Defendant, Health
Investors, or Defendant’s legal counsel or the escrow agent, Defendant, Fileman, ever notify
Plaintiff that it would not close the transaction.
Defendants, Health Investors and Fileman were completely silent as to their position and
rather only provided Plaintiff, KSD, as seller with notification via the e-mail dated May 10, 2022,
that a closing would be taking place.
According to Section twenty-five (25) of the contract, there needs to be written consent of
the seller to assign the contract to a third-party Purchaser. At no time, prior to the end of the
inspection period or the closing date of the contract, was there ever any assignment of the contract.
Page 11 of 17
In fact, in no time prior to the filing of the Complaint has Plaintiff been put on notice that
the contract was assigned by Punta Gorda Health Investors, LLC to any third-party.
Even more compelling, is the Affidavits of the Plaintiffs principal and manager, Joel Scheer
as well as the Plaintiffs legal counsel, Irwin Frank, which have been filed in support of this Motion
for Summary Judgement. Specific and saliant paragraphs in Joel Scheer’s Affidavit paragraphs
twelve (12) and thirteen (13):
“12. I was never advised in any way that there was an assignment of the contract by the
Purchaser, Punta Gorda Health Investors, LLC and Meridian Senior Living, LLC.”
“13. I was never requested to agree to any assignment of the Contract for Sale and
Purchase between Punta Gorda Health Investors, LLC and Meridian Senior Living, LLC.”
and in Attorney Irwin Frank’s Affidavit, paragraph thirteen (13):
“13. In fact, there has never been any notification provided that such contract was ever
assigned to a third-party or any indication that any third-party had authority to act on
behalf of the Purchaser.”
Both of the Affiants were specifically named and identified in Section twenty-one (21), the
“Notice Section”, to receive notices.
Specifically, in Section twenty-one (21), the Purchaser was clearly identified as Punta
Gorda Health Investors, LLC.
It is also clear that a third-party entity, a Delaware company, Meridian Senior Living, LLC,
issued a May 16, 2022 letter, a copy of which is attached hereto as “Exhibit C”, was never
identified as the assignee of any right, title or interest in the contract.
Further, the notification letter, (Exhibit C) never indicated that such authority existed or
that there was any type of assignment of the contract. The May 16, 2022 letter only identified a
termination of a contract between Plaintiff and Meridian Senior Living, LLC, self-identifying itself
as, “Purchaser” when no such contract existed between the parties nor was there ever any
Page 12 of 17
assignment of the contract. Further, there was demand by this third-party, Meridian Senior Living,
LLC., that it was not only the Purchaser, but it demanded the deposit to be returned to Meridian
Senior Living, LLC., when Meridian Senior Living, LLC. was never a party to the contract.
The Court has the obligation to apply the specific, contractual meaning from a document,
if it is clear and unambiguous. The cardinal rule of contractual construction is that when the
language of the contractis clear and unambiguous; the contract must be interpreted and
enforced in accordance with its plain meaning. See Ferreira v. Home Depot/Sedgwick CMS, 12
So. 3d 866, 868 (Fla. Ist DCA 2009).
"Contracts are to be construed in accordance with the plain meaning of the words
therein, and it is never the role of the trial court to rewrite a contract to make it more
reasonable for one of the parties.”
Columbia Bank v. Columbia Developers, Ltd. Liab. Co., 127 So. 3d 670, 673 (Fla. 1st
DCA 2013)
Based upon the Defendant’s position in its demands by its counsel for a Termination and
recapture of its deposit, the Defendant position to this Court is to consider the following undisputed
facts, and what Defendant argues allows the Contract to rewrite the Contract in Defendant’s favor:
a. The Purchaser, as identified in the Contract is Punta Gorda Health Investors, LLC.
b Section six (6) of the Contract provides that the Purchaser has the right to terminate
the contract.
The Contract in Section twenty-one (21) also authorizes “notices’’ to be provided
by the Purchaser’s attorney.
The Contract allows the Purchaser, Punta Gorda Health Investors LLC or its
attorney to demand that the deposits be returned to the Purchaser Punta Gorda
Health Investors, LLC.
There never was any assignment of the Contract by Punta Gorda Health Investors
LLC to a third- party Meridian Senior Living LLC (or even any request for
assignment).
Third-party Meridian Senior Living LLC self identifies as the “Purchaser” and
references a wholly illusory contract in its May 16, 2022 notice letter.
Third party Meridian Senior Living LLC never indicates it has any authority to
terminate the contract by assignment or agency.
Third-party Meridian Senior Living LLC never requested that the deposit be
returned to the Purchaser, Punta Gorda Health Investors LLC, but rather demanded
Page 13 of 17
that the deposit be paid to Meridian Senior Living, LLC, incorrectly identified as
the “Purchaser”.
On December of 2022 counsel for Punta Gorda Health Investors LLC references
that the Purchaser under the Contract (referenced as Buyer by counsel for Punta
Gorda Health Investors LLC) is entitled to the return of the deposit and identifies
the Buyer gave notice which is factually incorrect.
It is long standing Black Letter law adopted in Florida and reaffirmed by the 2" DCA that
Defendant has no right to request nor does this Court have the authority to re-write the plain
language in the Contract to modify that language that only Defendant Health Investors as
“Purchaser” or its legal counsel could exercise the termination of the contract. Only the Purchaser
or its legal counsel terminate the contract or demand the deposits be returned to the Purchaser. No
third party can issue a termination notice nor demand the deposit based upon the clear and
unambiguous language in the Contract for Sale and Purchase between Plaintiff and Defendant:
"When interpreting a contract, the court must first examine the plain language
of the contract for evidence of the parties’ intent." Heiny v. Heiny, 113 So. 3d
897, 900 (Fla. 2d DCA 2013) (quoting Murley v. Wiedamann, 25 So. 3d 27, 29
(Fla. 2d DCA 2009)). "Thus, when the terms of a voluntary contract are clear
and unambiguous, as here, the contracting parties are bound by those terms,
and a court is powerless to rewrite the contract to make it more reasonable or
advantageous for one of the contracting parties." Emergency Assocs. of Tampa,
P.A. v. Sassano, 664 So. 2d 1000, 1003 (Fla. 24 DCA 1995)
Dea v. PH Ft. Myers, LLC, 208 So. 3d 1204, 1207 (Fla. 2d DCA 2017)
The provision set forth in Section six (6) as to Termination and in Section twenty-five (25)
as to Assignment, clearly indicates rights, duties, and obligations of the parties, none of which
were met by the Defendant.
Based upon the provision set forth in Section six (6) and Section twenty-five (25) as to
assignment, and the considerations furnished for the rights, duties and obligations of the contract,
the Court must apply the plain and unambiguous language of the contract and the performance by
Page 14 of 17
the parties. In this particular case, there was a right of the Purchaser to terminate the contract,
provided that:
a. The Purchaser itself actually exercised that right;
b. The Purchaser exercised that right timely, or;
¢. The Purchaser’s attorney, acting on behalf of Purchaser timely exercised
such right of termination.
The facts before this Court indicate that neither Purchaser, as defined in the contract, nor
Purchaser’s attorney ever exercised any right to terminate. In fact, neither Purchaser nor their
attorney, has ever indicated that the contract was terminated per the clear and unambiguous
termination language in the contract or that the Purchaser assigned those rights out to a third-party
entity.
The Court should also look to the fact that the Purchaser, upon information and belief, was
at all times material, represented by legal counsel, Attorney Ariana Fileman. Attorney Fileman
herself never provided notification to the Seller of the termination nor ever confirmed the
termination of the May 16, 2022. The facts and circumstances reflect that the Purchaser’s failure
to even make demand for the deposit, by its silence, reflects the fact that Purchaser recognized it
was never entitled to the deposit. In fact, reviewing the “Termination Notice” that is attached to
the Plaintiff's Complaint as “Exhibit C” and also attached hereto as “Exhibit C”, the Court can
easily recognize a number of glaring discrepancies and issues with such document, to reflect that
it was never a proper termination as required by the specific contract terms for the Purchaser to
terminate the contract.
In addition, the document never indicated that the deposits were to be turned over to
Defendant Punta Gorda Health Investors but rather to a stranger to the contract.
Page 15 of 17
The Court should also take judicial notice of the rampant fraud that is being perpetrated in
real estate transactions in the state of Florida. As such, the Seller, being represented by an
experienced attorney, would not consent nor recognize a stranger to the contract, and a demand of
that stranger to take a deposit which was in escrow, held for the benefit of both Seller and
Purchaser.
In this case, the Court should easily identify that based upon the undisputed facts, the
application of fundamental contract law imposed upon the Court in construing the Contract for
Sale and Purchase that the Purchaser, Defendant Health Investors, never properly exercised their
right to terminate the contract and as a result failed to close, forfeiting the deposit that should inure
to the benefit of the Seller.
The Court should also recognize that the failure to terminate meant that the Defendant has
a duty to perform, which it did not. Based upon the Affidavits, the Seller suffered damages by the
breach by the Purchaser, and as such, the Plaintiff is entitled to recover the liquidated damages of
the deposit, to minimize and mitigate the damages suffered by the Seller as a result of the
Defendant’s breach.
As identified in the Affidavit and as pled in the pleadings, the Plaintiff retained the
undersigned legal counsel, and agreed to pay such attorney, a reasonable fee for his services.
Section 20 of the contract clearly identifies the following:
2, ATTORNEYS' FEES AND COSTS: In any litigation arlsing out of this
Contract, the prevailing party shall be entitled to recover from the non-prevailing party
reasonable attorney's fees and costs, at tial, appellate
and post judgment proceedings.
Page 16 of 17
WHERFORE, Plaintiff requests this Honorable Court grant it the following relief:
a. Declare that Defendant failed to provide notice of termination based upon the clear
and unambiguous language contained in the written Contract for Sale and Purchase
negotiated between and entered into by the Parties who were both represented by
legal counsel
Declare that Defendant failed to close the real estate transaction and therefore
breached the Contract for Sale and Purchase.
Declare that the Plaintiff suffered damages and is entitled to the liquidated damages
as negotiated for in the Contract for Sale and Purchase
Award Plaintiff entitlement to reasonable attorney fees and cost as the prevailing
party with such fees and cost as authorized by the contract, Paragraph twenty (20)
to be taken later, determined by this Court
Award Plaintiff such other relief as this Court may deem appropriate
CERTIFICATE OF SERVICE
THEREBY CERTIFY a true and correct copy of the foregoing was served via the e-filing
portal to all counsel of record this q Tw day of October, 2023.
LAW OFFICE OF JURSINSKI & MURPHY, PLLC.
15701 S. Tamiami Trail
Fort Myers, Florida 33908
Tel: (239) 337-1147 / Fax: (239) 337-5364
€ irsinski B.C.S.
Florida Bar: 318851
Page 17 of 17
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Filing # 183500571 E-Filed 10/09/2023 09:32:55 AM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA KSD PARTNERS, LLC, an Ohio limited liability company, Plaintiff, vs. CASE: 2023-002230-CA PUNTA GORDA HEALTH INVESTORS, LLC, a Florida limited liability company and FILEMAN LAW FIRM, P.A., a Florida corporation, as escrow agent, Defendant. MOTION FOR SUMMARY JUDGMENT COMES NOW, Plaintiff, KSD PARTNERS, LLC. (“KSD”) by and through its undersigned counsel and hereby file its, Motion for Summary Judgment, and in support thereof states as follows: GENERAL BACKGROUND AND UNDISPUTED FACTS 1 Plaintiff, KSD, is an Ohio limited liability company which owned property in Charlotte County, Florida, more specifically, at 1200 Socorro Drive, Punta Gorda, Florida 33950 (“Property”). 2 Defendant, Punta Gorda Health Investors, LLC, a Florida limited liability company (“HEALTH INVESTORS”), is a Florida limited liability company, who contracted to purchase property in Charlotte County, Florida. 3. Defendant, Fileman Law Firm. (“FILEMAN”), is a Florida professional law corporation, acting in its capacity as escrow agent, holding funds in the amount of $100,000.00 for the benefit of Plaintiff and Defendant. 4 Upon information and belief Defendant, Fileman, was also acting as the attorney for Defendant, Health Investors at all times material. Page 1 of 17 5 KSD and Health Investors entered into a Contract for Sale and Purchase whereby KSD was going to sell and Health Investors was going to purchase the Property. A copy of the Contract is attached hereto as Exhibit “A”. 6 Pursuant to paragraph 4(a) of the Contract, Health Investors was to deliver a deposit in the amount of $100,000.00 to Fileman. 7 The Contract provided Defendant, Health Investors with the opportunity to do a due diligence investigation and provided a time period of thirty-seven (37) days to undertake such due diligence. 8 Paragraph 28(n) of the contract also explained, that unless otherwise indicated, days would be determined by business days. 9 Due diligence began on the effective date of the Contract; the contract explains that the “Effective Date” shall be the date when the last one of Seller and Purchaser has executed and delivered this Contract.” 10. The Contract Effective Date was March 25, 2022. 11. Pursuant to paragraph 6(b) and 6(c) of the Contract, Defendant, Health Investors, (“Purchaser”) had the right to terminate the contract by notifying Plaintiff, KSD, in writing, of its intent to cancel the Contract. The exact verbiage is as follows: 6. INSPECTION PERIOD; &) Purchaser shall have a period commencing on the Effective and terminating thirty seven (37) days thereafter (the “Inspection Period”) within which to determine, in its sole discretion, whether the Property is suitable for Purchaser's use. In the event that any aspect of the Property is not acceptable to Purchaser, or should Purchaser decide not to proceed with the purchase of the Property for any or no reason whatsoever, then Purchaser may terminate this Contract at any time within the Inspection Period by providing written notice to either Seller or Seller's attomey, in which event this Contract shall be deemed terminated, Page 2 of 17 © Purchaser shall have the right, at Purchaser's sole discretion, for any reason or for no reason whatsoever, to terminate this Contract any time up to the end of the Inspection Pericd by giving written notice of termination to Seller, or Seller's attomey, up to the end of the Inspection Periad, in which event the Non- Refundable Deposit shall be released to Seller (except as provided in Section 4(a) above), the Purchaser shall receive a refund of the Refundable Deposit, end the parties shall be relieved from any further obligations hereunder and of any and all liability to each other, subject to Purchaser's return of the Seller Deliveries to Selter. 12. Purchaser, as clearly identified in the contract is Punta Gorda Health Investors, LLC. 13. Further, paragraph twenty-one (21) of the contract, provides notices could also be provided by the attorneys for the parties, and specifically indicates the following in Section twenty- one (21): “Attorneys for the parties are authorized to send notices and demands on behalf of their respective clients.” 14. Upon information and belief, Defendant Fileman was at all times material, acting as the attorney for Defendant, Health Investors, as it relates to the certain Contract for Sale and Purchase identified in paragraph five (5) above. 15. The last day of due diligence period, based upon the time set forth in the contract and the application of the business day section of the contract, would have been May 17, 2022. 16. Defendant, Health Investors, at all times material to the contract, Plaintiff, KSD, was ready willing and able to convey title to the Property to Defendant, Health Investors. Pursuant to Section 6(b). 17. Defendant, Fileman, on behalf of Defendant, Health Investors, acting not only as escrow agent, but attorney for Defendant, Health Investors, prior to the due diligence period, on May 10, 2022, provided an email to Plaintiff, KSD, a copy of which is attached hereto as Exhibit “B” which stated in pertinent part: Page 3 of 17 “J will need to know who will be signing for the seller so that I can finlalize (sic) documents on my end of things.” 18. At no time during the due diligence time period of the contract has Plaintiff, KSD, been notified of the termination of the contract rights by either a) Defendant and contract Purchaser, Health Investors or b) Defendant, Fileman as the authorized agent and attorney for Defendant. 19. Further, at no time prior to the end of the due diligence or prior to the end of the closing date, which was thirty (30) days after the due diligence, or June 28, 2022, did Defendant, Health Investors, or Defendant’s legal counsel or the escrow agent, Defendant, Fileman, ever notify Plaintiff that it would not close the transaction. 20. Defendants, Health Investors and Fileman were completely silent as to their position and rather only provided Plaintiff, KSD, as seller with notification, via the e-mail dated May 10, 2022, that a closing would be taking place. 21. It should be noted and as an important point, there has been no assignment of contract rights by Punta Gorda Health Investors. 22. Once the closing failed to take place, Plaintiff, KSD, notified Defendant, Fileman, as escrow agent and attorney for Defendant, Health Investors, that Buyer closing was in default and Plaintiff, as Seller, demanded the deposit. 23. In order for Plaintiff to mitigate its damages, Plaintiff ultimately sold the property to a third-party purchaser for a price less than what they would have received by selling it to the Defendant, Health Investors. 24. In response to the demand for the deposit, Defendant Fileman, as attorney and escrow agent for Defendant, Health Investors, requested that Plaintiff release the deposit and forwarded Plaintiffs a termination and release of deposit to Defendant, Health Investors. The Page 4 of 17 demand notice and the termination deposit specifically identify the Purchaser as Defendant, Punta Gorda Health Investors, LLC, (although incorrectly referenced as, “Buyer”). 25. Attached hereto as “Exhibit C” is the Termination Agreement, identifying the Buyer as Punta Gorda Health Investors, LLC, indicating in the fourth recital: “WHEREAS, Buyer gave Seller notice of termination of the contract and request for the release of the deposit prior the end of the inspection period.” 26. It is undisputed in the record, and supported by the Affidavits of both the Seller and the Seller’s attorney, filed contemptuous with this Motion, that there was never any notification issued for termination of the contract by either the Purchaser, Punta Gorda Health Investors, LLC or their attorney, Defendant Fileman as required by Section six (6) or Section twenty-one (21) under the contract. 27. It should be noted that Punta Gorda Health Investors, LLC again is the Buyer and Punta Gorda Health Investors has stated under oath in this case and pursuant to the interrogatories that there has been no assignment of any rights under the contract. Accordingly, no third party, including third party, Meridian Health Investors, LLC has ever been authorized by assignment or otherwise to act on behalf of the Defendant, Punta Gorda Health Investors as the Buyer. See Interrogatory #14: 14.Did you get an authorization from Plaintiff to assign any contract rights to 3rd party Meridian Senior Living, LLC? ANSWER: Per the contract no authorization is required. 28. Rather than return the deposit, Defendant, Fileman, on behalf of Defendant, Health Investors, indicated that proper notification was given, based upon a third-party providing notification of termination of the Contract to Plaintiff, KSD. Page 5 of 17 29. It should be noted that a stranger to the contract, third-party, Meridian Senior Living, LLC, issued notification to Plaintiff to terminate the contract. A copy of the termination is attached hereto as Exhibit “C”. 30. The Court need only examine the termination letter, attached hereto as “Exhibit C”, to identify numerous and fatal errors contained in the letter, as follows: a. The letter references the following Contract for Sale and Purchase: RE: Contract for Purchase and Sale executed March 28, 2022 (the “PSA”), between KSD PARTNERS, LLC (“Seller”) and Meridian Senior Living, LLC (“Purchaser”), covering the property located at 1200 Socorro Dr,. Punta Gorda, Florida 33950 (the “Property”) Clearly the reference in the initial portion of the letter, identifying the “Contract For Purchase and Sale” is not even a contract for sale and purchase before this court, but rather, some type of contract for sale and purchase between the Plaintiff and Meridian Senior Living, LLC., which does not exist. b It is undisputed that no contract for sale and purchase was ever entered into between Plaintiff and Meridian Senior Living, LLC., nor was there ever any assignment of a contract entered into between KSD and the Defendant, to Meridian Senior Living, LLC as established by the interrogatories. In addition, the affidavits of the Plaintiff's representative clearly indicate that they had no idea who Meridian Senior Living was. ¢. Further, nothing in the letter indicates that the stranger to the contract, Meridian Senior Living, LLC., was acting on behalf of the purchasers. d Additionally, this letter was not issued by the Purchaser, Defendant Health Investors or their legal counsel is required by Section six (6) or Section eleven (11) of the contract which clearly and unambiguously defined that only the purchaser, Punta Gorda Health Investors Page 6 of 17 or the attorney, had the authority to act on behalf of the purchaser, Defendant, Punta Gorda Health Investors, LLC. €. In addition, the demand for the deposit was to return the deposit to the “Purchaser”, identified in the contract as Meridian Senior Living, LLC which absolutely is not allowed for under the contract nor provided for in as much as Meridian Senior Living is not only a stranger to the contract, but had no authority to act or receive deposits on behalf of the purchaser, even if it was entitled to such deposits. f. There was no reference to any claim that Meridian Senior Living, LLC. was an assignee of the contract and in fact, this has been established as a matter of law by the sworn response of the Defendants that no such assignment took place. See Interrogatory #15: 15.Did Punta Gorda Health Investors, LLC assign the contract rights to Meridian Senior Living, LLC? ANSWER: No. g Merdian Senior Livng (sic), LLC, as identified in the signature block is misspelled. 31. The letter (Exhibit “C’”) sent by a third-party stranger to the contract did not in any way indicate that the letter was being sent on behalf of Purchaser, Defendant, Health Investors and further that such party had the authorization to act on behalf of Defendant, Health Investors, or Defendant. Fileman. 32. As of the date of this pleading, there still has never been any notification given to Plaintiff, KSD, that such third-party had any authority whatsoever to act on behalf of Defendant, Health Investors. Page 7 of 17 33. Further and as supported by the Affidavits of Plaintiff representative and Plaintiff's counsel, there never has been any notification issued for a termination of the contract at any time by the Defendant’s counsel or by the Defendant’s Purchaser. 34. In fact, the introductory paragraph of the letter (Exhibit “C”) states only the following: “Reference is made to the PSA.” 35. It is undisputed that no such formal notification of termination of the Contract was ever provided by Defendant, Health Investors, as Purchaser, under the Contract nor was any notification of termination ever provided to Plaintiff, KSD, by Defendant, Fileman, legal counsel and escrow agent for Defendant, Health Investors. 36. The Court also has been asked to take judicial notice of the significant amounts of wire fraud and other cyber security issues involving real estate transaction and funds held in escrow accounts in Florida. Both the Florida Bar as well as numerous organizations have consistently warned attorneys to be on the watch for hackers and cyber security and the Plaintiff has asked the court to take judicial notice of this very common warning to all real estate attorneys. 37. Not only is the notification by Meridian Senior Living ineffective as a matter of law to terminate the contract, it has significant, numerous red flags that should put all parties on notice that they should disregard any conduct or activities by the stranger and that the $100,000 should not have been released to the stranger to the contract. This was not only for the legal reasons set forth above, but as importantly, based upon warnings provided by the Florida Bar and more specifically the September 20, 2023 Florida Bar News Journal article; “CyberAttacks on Law Firms Are Up Sharply”. Page 8 of 17 STANDARD OF REVIEW Pursuant to Florida Rule of Civil Procedure 1.510(c), a motion for summary judgment must: “state with particularity the grounds upon which it is based and the substantial matters of law to be argued and must specifically identify any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence ("summary judgment evidence") on which the movant relies. ... The judgment sought must be rendered immediately if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The Supreme Court has held that there is “no express or implied requirement ... that the moving party support its motion with affidavits or other similar materials negating the opponent’s claim.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Rather, “the burden on the moving party may be discharged by ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party’s case.” /d. at 325. Furthermore, summary judgment should be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Jd. at 322. The test for whether a genuine issue of material fact exists is to determine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Jd. at 249-50 (citations omitted). A party opposing summary judgment “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “When opposing parties tell two different stories, one of which is blatantly contradicted Page 9 of 17 by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). “One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way that allows it to accomplish this purpose.” Celotex, 477 U.S, at 323-24. LEGAL ARGUMENT Based upon the undisputed facts, as set forth above, and the undisputed contractual language, it is clear that from the plain and unambiguous reading of the contract, only the Purchaser has a right to terminate the contract, specifically, Section 6 (b) and 6(c) of the Contract, indicates as follows: 6. INSPECTION PERIOD: (v) Purchaser shall have a period commencing on the Effective and terminating thirty seven (37) days thereafter (the “Inspection Period”) within which to determine, in its sole discretion, whether the Property is suitable for Purchaser's use. In the event that any aspect of the Property is not acceptable to Page 10 of 17 Purchaser, or should Purchaser decide not to proceed with the purchase of the Property for any or no reason whatsoever, then Purchaser may terminate this Contract at any time within the Inspection Period by providing written notice to either Seller or Seller's attomey, in which event this Contract shall be deemed terminated, © Purchaser shall have the rigbt, at Purchaser's sole discretion, for any reason or for no reason whatsoever, to terminate this Contract any time up to the end of the Inspection Pericd by giving written notice of termination to Seller, or Seller's attorney, up to the end of the Inspection Period, in which event the Non- Refindable Deposit shall be released to Seller (except as provided in Section 4{a) above), the Purchaser shall receive a refund of the Refundable Deposit, end the parties shall be relieved from any further obligations hereunder and of any and all liability to each other, subject to Purchaser's return of the Seller Deliveries to Seller. At no time during the due diligence, or, in fact, at any time from the date of the Contract until the date of filing of this action has Plaintiff, KSD, been notified of the termination of the contract rights by either a) Defendant, Health Investors “Purchaser” or b) Defendant, Fileman, as the authorized agent and attorney for Defendant, Health Investors, as Purchaser. Further, at no time prior to the end of the due diligence or prior to the end of the closing date, which was thirty (30) days after the due diligence, or June 28, 2022, did Defendant, Health Investors, or Defendant’s legal counsel or the escrow agent, Defendant, Fileman, ever notify Plaintiff that it would not close the transaction. Defendants, Health Investors and Fileman were completely silent as to their position and rather only provided Plaintiff, KSD, as seller with notification via the e-mail dated May 10, 2022, that a closing would be taking place. According to Section twenty-five (25) of the contract, there needs to be written consent of the seller to assign the contract to a third-party Purchaser. At no time, prior to the end of the inspection period or the closing date of the contract, was there ever any assignment of the contract. Page 11 of 17 In fact, in no time prior to the filing of the Complaint has Plaintiff been put on notice that the contract was assigned by Punta Gorda Health Investors, LLC to any third-party. Even more compelling, is the Affidavits of the Plaintiffs principal and manager, Joel Scheer as well as the Plaintiffs legal counsel, Irwin Frank, which have been filed in support of this Motion for Summary Judgement. Specific and saliant paragraphs in Joel Scheer’s Affidavit paragraphs twelve (12) and thirteen (13): “12. I was never advised in any way that there was an assignment of the contract by the Purchaser, Punta Gorda Health Investors, LLC and Meridian Senior Living, LLC.” “13. I was never requested to agree to any assignment of the Contract for Sale and Purchase between Punta Gorda Health Investors, LLC and Meridian Senior Living, LLC.” and in Attorney Irwin Frank’s Affidavit, paragraph thirteen (13): “13. In fact, there has never been any notification provided that such contract was ever assigned to a third-party or any indication that any third-party had authority to act on behalf of the Purchaser.” Both of the Affiants were specifically named and identified in Section twenty-one (21), the “Notice Section”, to receive notices. Specifically, in Section twenty-one (21), the Purchaser was clearly identified as Punta Gorda Health Investors, LLC. It is also clear that a third-party entity, a Delaware company, Meridian Senior Living, LLC, issued a May 16, 2022 letter, a copy of which is attached hereto as “Exhibit C”, was never identified as the assignee of any right, title or interest in the contract. Further, the notification letter, (Exhibit C) never indicated that such authority existed or that there was any type of assignment of the contract. The May 16, 2022 letter only identified a termination of a contract between Plaintiff and Meridian Senior Living, LLC, self-identifying itself as, “Purchaser” when no such contract existed between the parties nor was there ever any Page 12 of 17 assignment of the contract. Further, there was demand by this third-party, Meridian Senior Living, LLC., that it was not only the Purchaser, but it demanded the deposit to be returned to Meridian Senior Living, LLC., when Meridian Senior Living, LLC. was never a party to the contract. The Court has the obligation to apply the specific, contractual meaning from a document, if it is clear and unambiguous. The cardinal rule of contractual construction is that when the language of the contractis clear and unambiguous; the contract must be interpreted and enforced in accordance with its plain meaning. See Ferreira v. Home Depot/Sedgwick CMS, 12 So. 3d 866, 868 (Fla. Ist DCA 2009). "Contracts are to be construed in accordance with the plain meaning of the words therein, and it is never the role of the trial court to rewrite a contract to make it more reasonable for one of the parties.” Columbia Bank v. Columbia Developers, Ltd. Liab. Co., 127 So. 3d 670, 673 (Fla. 1st DCA 2013) Based upon the Defendant’s position in its demands by its counsel for a Termination and recapture of its deposit, the Defendant position to this Court is to consider the following undisputed facts, and what Defendant argues allows the Contract to rewrite the Contract in Defendant’s favor: a. The Purchaser, as identified in the Contract is Punta Gorda Health Investors, LLC. b Section six (6) of the Contract provides that the Purchaser has the right to terminate the contract. The Contract in Section twenty-one (21) also authorizes “notices’’ to be provided by the Purchaser’s attorney. The Contract allows the Purchaser, Punta Gorda Health Investors LLC or its attorney to demand that the deposits be returned to the Purchaser Punta Gorda Health Investors, LLC. There never was any assignment of the Contract by Punta Gorda Health Investors LLC to a third- party Meridian Senior Living LLC (or even any request for assignment). Third-party Meridian Senior Living LLC self identifies as the “Purchaser” and references a wholly illusory contract in its May 16, 2022 notice letter. Third party Meridian Senior Living LLC never indicates it has any authority to terminate the contract by assignment or agency. Third-party Meridian Senior Living LLC never requested that the deposit be returned to the Purchaser, Punta Gorda Health Investors LLC, but rather demanded Page 13 of 17 that the deposit be paid to Meridian Senior Living, LLC, incorrectly identified as the “Purchaser”. On December of 2022 counsel for Punta Gorda Health Investors LLC references that the Purchaser under the Contract (referenced as Buyer by counsel for Punta Gorda Health Investors LLC) is entitled to the return of the deposit and identifies the Buyer gave notice which is factually incorrect. It is long standing Black Letter law adopted in Florida and reaffirmed by the 2" DCA that Defendant has no right to request nor does this Court have the authority to re-write the plain language in the Contract to modify that language that only Defendant Health Investors as “Purchaser” or its legal counsel could exercise the termination of the contract. Only the Purchaser or its legal counsel terminate the contract or demand the deposits be returned to the Purchaser. No third party can issue a termination notice nor demand the deposit based upon the clear and unambiguous language in the Contract for Sale and Purchase between Plaintiff and Defendant: "When interpreting a contract, the court must first examine the plain language of the contract for evidence of the parties’ intent." Heiny v. Heiny, 113 So. 3d 897, 900 (Fla. 2d DCA 2013) (quoting Murley v. Wiedamann, 25 So. 3d 27, 29 (Fla. 2d DCA 2009)). "Thus, when the terms of a voluntary contract are clear and unambiguous, as here, the contracting parties are bound by those terms, and a court is powerless to rewrite the contract to make it more reasonable or advantageous for one of the contracting parties." Emergency Assocs. of Tampa, P.A. v. Sassano, 664 So. 2d 1000, 1003 (Fla. 24 DCA 1995) Dea v. PH Ft. Myers, LLC, 208 So. 3d 1204, 1207 (Fla. 2d DCA 2017) The provision set forth in Section six (6) as to Termination and in Section twenty-five (25) as to Assignment, clearly indicates rights, duties, and obligations of the parties, none of which were met by the Defendant. Based upon the provision set forth in Section six (6) and Section twenty-five (25) as to assignment, and the considerations furnished for the rights, duties and obligations of the contract, the Court must apply the plain and unambiguous language of the contract and the performance by Page 14 of 17 the parties. In this particular case, there was a right of the Purchaser to terminate the contract, provided that: a. The Purchaser itself actually exercised that right; b. The Purchaser exercised that right timely, or; ¢. The Purchaser’s attorney, acting on behalf of Purchaser timely exercised such right of termination. The facts before this Court indicate that neither Purchaser, as defined in the contract, nor Purchaser’s attorney ever exercised any right to terminate. In fact, neither Purchaser nor their attorney, has ever indicated that the contract was terminated per the clear and unambiguous termination language in the contract or that the Purchaser assigned those rights out to a third-party entity. The Court should also look to the fact that the Purchaser, upon information and belief, was at all times material, represented by legal counsel, Attorney Ariana Fileman. Attorney Fileman herself never provided notification to the Seller of the termination nor ever confirmed the termination of the May 16, 2022. The facts and circumstances reflect that the Purchaser’s failure to even make demand for the deposit, by its silence, reflects the fact that Purchaser recognized it was never entitled to the deposit. In fact, reviewing the “Termination Notice” that is attached to the Plaintiff's Complaint as “Exhibit C” and also attached hereto as “Exhibit C”, the Court can easily recognize a number of glaring discrepancies and issues with such document, to reflect that it was never a proper termination as required by the specific contract terms for the Purchaser to terminate the contract. In addition, the document never indicated that the deposits were to be turned over to Defendant Punta Gorda Health Investors but rather to a stranger to the contract. Page 15 of 17 The Court should also take judicial notice of the rampant fraud that is being perpetrated in real estate transactions in the state of Florida. As such, the Seller, being represented by an experienced attorney, would not consent nor recognize a stranger to the contract, and a demand of that stranger to take a deposit which was in escrow, held for the benefit of both Seller and Purchaser. In this case, the Court should easily identify that based upon the undisputed facts, the application of fundamental contract law imposed upon the Court in construing the Contract for Sale and Purchase that the Purchaser, Defendant Health Investors, never properly exercised their right to terminate the contract and as a result failed to close, forfeiting the deposit that should inure to the benefit of the Seller. The Court should also recognize that the failure to terminate meant that the Defendant has a duty to perform, which it did not. Based upon the Affidavits, the Seller suffered damages by the breach by the Purchaser, and as such, the Plaintiff is entitled to recover the liquidated damages of the deposit, to minimize and mitigate the damages suffered by the Seller as a result of the Defendant’s breach. As identified in the Affidavit and as pled in the pleadings, the Plaintiff retained the undersigned legal counsel, and agreed to pay such attorney, a reasonable fee for his services. Section 20 of the contract clearly identifies the following: 2, ATTORNEYS' FEES AND COSTS: In any litigation arlsing out of this Contract, the prevailing party shall be entitled to recover from the non-prevailing party reasonable attorney's fees and costs, at tial, appellate and post judgment proceedings. Page 16 of 17 WHERFORE, Plaintiff requests this Honorable Court grant it the following relief: a. Declare that Defendant failed to provide notice of termination based upon the clear and unambiguous language contained in the written Contract for Sale and Purchase negotiated between and entered into by the Parties who were both represented by legal counsel Declare that Defendant failed to close the real estate transaction and therefore breached the Contract for Sale and Purchase. Declare that the Plaintiff suffered damages and is entitled to the liquidated damages as negotiated for in the Contract for Sale and Purchase Award Plaintiff entitlement to reasonable attorney fees and cost as the prevailing party with such fees and cost as authorized by the contract, Paragraph twenty (20) to be taken later, determined by this Court Award Plaintiff such other relief as this Court may deem appropriate CERTIFICATE OF SERVICE THEREBY CERTIFY a true and correct copy of the foregoing was served via the e-filing portal to all counsel of record this q Tw day of October, 2023. LAW OFFICE OF JURSINSKI & MURPHY, PLLC. 15701 S. Tamiami Trail Fort Myers, Florida 33908 Tel: (239) 337-1147 / Fax: (239) 337-5364 € irsinski B.C.S. Florida Bar: 318851 Page 17 of 17 ay By i 3° GELgep? 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