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IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
IN AND FOR SARASOTA COUNTY, FLORIDA
RICHARD C. SENKER, Trustee of the Richard
C. Senker and Patricia A. Senker Land Trust, a
Florida Land Trust,
Plaintiff,
Vs. CASE NO. 2007 CA 008509 NC
SNAVELY SIESTA ASSOCIATES, LLC,
an Ohio Limited Liability Company,
Defendant.
/
SNAVELY SIESTA ASSOCIATES, LLC’S BRIEF IN OPPOSITION —
TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Defendant/Counterclaimant Snavely Siesta Associates, LLC (“Snavely”), by and through
its undersigned counsel, files this Brief in Opposition to Plaintiff's Motion for Summary
Judgment and states:
STANDARD OF REVIEW
This Court may grant summary judgement if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, 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. Fla.R.Civ.P. 1.510. The court’s function on a motion for summary judgment is
solely to determine whether, from the record, there exists a genuine issue as to any material fact.
Hervey v. Alfonso, 650 So. 2d 644, 646 (Fla. 2d DCA 1995). Further, the court must consider all
facts in the light most favorable to the non-moving party and draw reasonable inferences against
the moving party. Fisel v. Wynns, 667 So. 2d 761, 764 (Fla. 1996).
Filed for Record 08/20/2008 03:35 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-87900065 Page 1 of 9ARGUMENT
Plaintiff argues that the purchase and sale agreement violates the Interstate Land Sales
Full Disclosure Act, 15 U.S.C. § 1701 et seq. (“ILSA”) because Snavely is insufficiently
obligated to complete construction of the condominium unit within the two-year deadline.
Plaintiff’s Motion must be denied because it fails to consider the Contract in its entirety,
including the severability clauses, and misconstrues Florida contract law.
On July 18, 2005, Plaintiff and Snavely entered into a purchase and sale agreement for
the construction and sale of Unit 602C at Summer Cove on Siesta in Sarasota County (the
“Contract”). Snavely completed construction of Unit 602C in two years as required by the
Contract, yet Plaintiff seeks to escape its contractual obligations to close by now claiming that
the Contract violates the ILSA.
The Contract provides that construction of the unit must be completed in two years:
The Unit... shall be completed not later than two (2) years from the date
Purchaser signs this Contract. However, the date for completion may be extended
by reason of delays incurred by circumstances beyond the Seller’s control, such as
acts of God, or any other grounds cognizable in Florida contract law [such] as
impossibility or frustration of performance, including, without limitation, delays
occasioned by rain, wind and lightning storms. I? is the intention of the parties
that this sale qualify for the exemption provided by 15 U.S.C. Section
1702(a)(2), and that nothing contained in this Agreement shall be construed or
so operate as to any obligations of Seller or rights of Buyer in-a manner which
would render said exemption inapplicable. Subject to the provisions of this
paragraph, time is of the essence to this Agreement. Buyer shall not be allowed
to take possession of the Unit prior to Closing the purchase.
Contract, § 4.a. (emphasis added).
The contractual provision set forth above is governed further by the following
severability clause:
If any provision or part of this Agreement is contrary to, prohibited by or
Filed for Record 08/20/2008 03:35 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-87900065 Page 2 of 9deemed invalid under applicable law or regulation, such provision shall be
inapplicable and deemed omitted to the extent so contrary, prohibited or invalid,
but the remainder hereof shall not be invalidated thereby and shall be given full
force and effect so far as possible.
Id., { 10.p.
The ILSA is a consumer protection measure to prevent fraud in the purchase and sale of
single family homes and condominiums by requiring that developers make certain disclosures.
The ILSA requires filing a statement of record with HUD and that the developer provide a
printed property report to prospective buyers, unless the development meets one of the various
exceptions set forth in Section 1702. 15 U.S.C. §§ 1702 — 1705, 1707. One of the exceptions in
Section 1702 provides that the developer is exempt from the reporting requirements of ILSA if
the purchase and sale agreement obligates the developer to complete construction within two
years of the signing of the contract. 15 U.S.C. § 1702(a)(2). Whether a contract “obligates” a
developer to build in two years is a matter of state contract law. Hardwick Properties, Inc. v.
Newbern, 711 So.2d 35, 38 (Fla. 1° DCA 1998), quoting Samara Development Corp. v. Marlow,
556 So.2d 1097, 1100 (Fla. 1990).
The Contract here is exempt from ILSA because it obligates Snavely to complete
construction in two years, subject only to the standard defenses that are recognized by Florida
courts, such as impossibility or frustration of performance. Jn its Guidelines, the U.S.
Department of Housing and Urban Development (“HUD”) states that contracts will not be
exempt under 1702(a)(2) “if they allow nonperformance by the seller at the seller’s discretion.”
Supplemental Information to Part 1710: Guidelines for Exemptions Available Under the
Interstate Land Sales Full Disclosure Act, at www.hud.gov/offices/hsg/sth/ils/ilsexemp.cfm
Filed for Record 08/20/2008 03:35 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-87900065 Page 3 of 9(“Guidelines”); Also, 15 U.S.C. § 1715.1
The conditions found in the parties’ Contract do not allow nonperiormance at Snavely’s
discretion. Conditions to timely completion of construction will not defeat an ILSA exemption if
such conditions are “legally recognized as defenses to contract actions in the jurisdiction where
the building is being erected.” Guidelines, supra.; Darbie v. State, 711 So.2d 1280, 1282 (Fla.
3d DCA 1998), citing Chevron, USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837; 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
Florida law recognizes force majeure defenses to timely completion, including weather
events like hurricanes and excessive rain. Florida Power Corp. v. Tallahassee, 154 Fla. 638
(1944) (power interruption resulting from hurricane is excusable under force majeure clause);
Devco Dev. Corp. v. Hooker Homes, Inc., 518 So.2d 922 (Fla. 2d DCA 1987); and Castiedio v.
Sweetwater Homes of Citrus, Inc., 843 So.2d 1019, 1021 (Fla. 5* DCA 2003).
Delays occasioned by governmental agencies are also excusable as force majeure events,
as are material and manpower shortages. Leon County v. Gluesenkamp, 873 So.2d 460 (Fla. 1°
DCA 2004) (governmental actions recognizable excusable delays); St. Joe Paper Co. v. f° la.
Dept. of Environ. Regulations, 371 So.2d 178, 180 (Fla. 1° DCA 1979); Hilton Oil Transport v.
Oil Transport Co., S.A., 659 So.2d 1141 (Fla. 3d DCA 1995) (governmental delays), Hardwick
Properties, supra, at 37; and Century 21 Admiral’s Port, Inc. v. Novak, 339 So.2d 677 (Fla. 3d
DCA 1976) (delays caused by material and labor shortages valid defenses to contract
performance).
1 Where Congress has provided a legislative delegation to an agency of the federal government, a court may not
substitute its own construction of a statutory provision for a reasonable interpretation made by an administrative
Filed for Record 08/20/2008 03:35 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-87900065 Page 4 of 9In short, valid force majeure events are those unexpected events that contracting parties
do not and cannot anticipate at the time of execution and make performance impossible through
no fault of the nonperforming party. Florida Power Corp, supra, at 045.
Similarly, commercial frustration of performance, as opposed to impossibility of
performance, is a related but distinct defense and excuses performances where it 1s possible to
perform but that the event is such that it “totally or nearly destroys the purpose of the agreement
so as to excuse performance.” Valencia Center, Inc. v. Publix Super Markets, Inc., 464 So.2d
1267, 1269 (Fla. 3d DCA 1985). An event that is outside the control of the parties and so
impacts construction that it makes performance all but impracticable cannot be said to be at the
discretion of the developer so as to defeat an ILSA exemption. Guidelines, supra.
In this case, the Contract explicitly limits any extensions to the two-year limitation to _
only those incurred “by reason of delays incurred by circumstances beyond the Seller’s control,”
whether those delays are occasioned by the long-recognized doctrines of impossibility or
frustration of performance. Contract, {4. There can be no argument, therefore, that the Contract
gives Snavely discretion to extend the deadline for performance or that the Contract language
renders Snavely’s obligation to perform within the two-year deadline “illusory.” Such argument,
to the extent that Plaintiff makes it, is contradicted by the very language of the agreement.
Given the difficult legal standard to be met in establishing either the doctrines of
impossibility or frustration of performance, one cannot claim that Snavely’s obligation in this
case was illusory. Snavely certainly could not have, and did not, at its own discretion fail or
refuse to perform. Surely, had Snavely believed it could whimsically ignore the two-year
gp
agency. Darbie v. State, 711 So.2d 1280, 1282 (Fla. 3d DCA 1998), citing Chevron, USA, Inc. v. Natural Resources
5
Filed for Record 08/20/2008 03:35 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-87900065 Page 5 of 9deadline imposed by the Contract, it would not have worked as hard as it did to set the closing
date mere days before its expiration. See, Affidavit of Bryan Nichols. Instead, Snavely
endeavored to meet its contractual obligations, only to be met with a buyer that would not fulfill
his. The ILSA was meant to protect naive buyers from fraudulent practices by builders, not to
give a buyer now reluctant to close on his unit because of a downturn in the real estate market an
escape hatch.
No provision or condition in the Contract releases Snavely from its obligations to
complete construction within two years. Had Snavely breached the Contract and failed to timely
construct the unit, it would have faced very real economic claims by Plaintiff. Fortunately, this
did not occur, as the unit was timely completed. Ironically, however, it is now Snavely that 1s
suffering economic harm as a result of Plaintiff's refusal to close.
Assuming for the sake of argument that the conditions in the Contract are not valid,
improperly limit Plaintiff’s remedies or are deemed so broad so as to make Snavely’s obligations
illusory, the severability clauses in Paragraphs 4 and 10(p) preserves Snavely’s ILSA exemption.
A severability clause, combined with a savings clause, is a “logical and prudent safeguard” in
contractual relationships. Combs v. Associated Electric Co-op, inc., 752 F.Supp. 1131, 1138
(U.S.D.C, 1990). Whether a severability clause is to be given effect is a matter of state law.
Jackson v. Cintas Corp., 425 F.3d 1313, 1317 (11" Cir. 2005).
Florida law requires that contracts are interpreted in such a way so as to give effect to
every provision, “unless such an interpretation distorts the plain meaning of the agreement.”
Hillsborough County Aviation Authority v. Cone Bros., 285 So.2d 619, 621 (Fla. 2d DCA 1973).
Defense Council, Ine., 467 U.S. 837, 104 S.CT, 2778, 81 L.Ed.2d 694 (1984),
6
Filed for Record 08/20/2008 03:35 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-87900065 Page 6 of 9The intent of the parties is the guiding light for the court in construction of a contract.
Okeechobee Landfill, Inc. v. Republic Services of Florida, L.P., 931 S0.2d 942, 944-45 (Fla. 4
DCA 2006).
The intent of the parties is determined by examination of the circumstances at the time
the parties entered into the contract. Huntington On The Green Condominium v. Lemon Tree I-
Condominium, 874 So.2d 1, 4-5 (Fla. 5" DCA 2004); quoting, Triple E Dev. Co. v. Floridagold
Citrus Corp., 51 So.2d 435, 438-39 (Fla. 1951). The language of the contract itself 1s the “best
evidence” of the parties’ intent. Royal Oak Landing Homeowners’ Ass’n, Inc. v. Pelletier, 620
So.2d 786, 788 (Fla. 4™ DCA 1993). For the purposes of the ILSA, the courts are required to
look at the parties’ intent at the time they entered into the contract when evaluating whether they
intended for an exemption to apply to their transaction. Grove f owers, Ine. vy. Lopez, 467 $o.2d
358, 361 (Fla. 3d DCA 1985).
The Contract demonstrates a clear intent of both parties to meet to exemption
requirements of 1702(a)(2). Nothing, of course, can be more clear than the Contract’s explicit
statement that:
It is the intention of the parties that this sale qualify for the exemption provided
by 15 U.S.C. Section 1702(a)(2), and that nothing contamed in this Agreement
shall be construed or so operate as to any obligations of Seller or rights of Buyer
in a manner which would render said exemption inapplicable.” [Emphasis
added. |
Contract, 44. The parties agreed that if any portion of the Contract is deemed illegal or violates
the ILSA, it should not be operative. Where an alleged illegal provision of a contract does not go
to the essence of the contract, the illegal portion should be stricken and the rest of the contract
given its full force and effect. Slusher v. Greenfield, 488 So.2d 579, 580 (Fla. 4" DCA 1986).
Filed for Record 08/20/2008 03:35 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-87900065 Page 7 of 9The essence of the Contract is for Snavely to construct and sell a unit at Summer Cove on
Siesta for Plaintiff and for Plaintiff to pay the agreed price. Striking any condition from the
Contract which may render the exemptions allowed under the ILSA would not defeat this
fundamental purpose; rather, it would merely be a reflection of the parties’ intent. Therefore, if
any of the conditions in Paragraph 4 of the Contract violate the ILSA, as Plaintiff assumedly
asserts, then such conditions must be stricken to preserve the parties’ intent.
Thus, the severability clauses here removes any doubt, if there is any, that Snavely
obligated itself to complete construction in two years’ time. As one court stated,
[A]n illegal portion of a bilateral contract may be eliminated, leaving the remainder
of the contract in full force and effect when, the illegal portion of the contract does
not go to its essence, and where with the illegal portion eliminated, there still
remains of the contract valid legal promises on one side which are wholly supported
by valid legal promises on the other.
In re Voltarel, 236 B.R. 464 (M.D. Fla. 1999) (internal quotations omitted).
If the allegedly problematic provisions of the Contract are stricken, there would still
remain Snavely’s valid legal promise to construct the Unit in two years wholly supported by
Plaintiff's valid legal promise to pay for the Unit.
Because the fundamental purpose of the Contract is for the construction and sale of a unit
in the Summer Cove at Siesta project, and because it was the intention of the parties that their
transaction should qualify for the exemptions provided by 15 U.S.C. § 1702(a)(2), nothing
contained in the Contract should be construed in a manner which would render the exemption
inapplicable. Drafting an agreement in order to utilize the exemptions provided in 1702
demonstrates that the parties intended to use a safe harbor provision expressly made available to
them by Congress. Hardwick Properties, supra, at 39-40 ULSA’s two-year completion
Filed for Record 08/20/2008 03:35 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-87900065 Page 8 of 9exemption upheld); Marco Bay Associates v. Vandewalle, 472 So.2d 472 (Fla. 2d DCA 1985)
(ILSA’s two-year completion exemption applied); and Mayersdorf v. Paramount Boynton, LLC,
910 So.2d 887 (Fla. 4" DCA 2005) (ILSA’s 100-lot exemption upheld). Nothing Plaintiff cites
to compels the slightest conclusion to the contrary and thus, Plaintiff's motion should be denied.
CONCLUSION
For all the above reasons, Plaintiff's Motion for Summary Judgment should be denied.
CERTIFICATE OF SERVICE
[HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via
facsimile and by U.S. Mail to: Sheryl A. Edwards, Esq., The Edwards Law Firm, PL, 1901
fi
Morrill Street , Sarasota, FL 34236, on this A o day of August, 2008.
KIRK w= PINKERTON, P.A.
Plaza at Five Points
50 Central Avenue, Suite 700
Sarasota, Florida 34236 _
Filed for Record 08/20/2008 03:35 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-87900065 Page 9 of 9
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IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA RICHARD C. SENKER, Trustee of the Richard C. Senker and Patricia A. Senker Land Trust, a Florida Land Trust, Plaintiff, Vs. CASE NO. 2007 CA 008509 NC SNAVELY SIESTA ASSOCIATES, LLC, an Ohio Limited Liability Company, Defendant. / SNAVELY SIESTA ASSOCIATES, LLC’S BRIEF IN OPPOSITION — TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Defendant/Counterclaimant Snavely Siesta Associates, LLC (“Snavely”), by and through its undersigned counsel, files this Brief in Opposition to Plaintiff's Motion for Summary Judgment and states: STANDARD OF REVIEW This Court may grant summary judgement if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, 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. Fla.R.Civ.P. 1.510. The court’s function on a motion for summary judgment is solely to determine whether, from the record, there exists a genuine issue as to any material fact. Hervey v. Alfonso, 650 So. 2d 644, 646 (Fla. 2d DCA 1995). Further, the court must consider all facts in the light most favorable to the non-moving party and draw reasonable inferences against the moving party. Fisel v. Wynns, 667 So. 2d 761, 764 (Fla. 1996). Filed for Record 08/20/2008 03:35 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-87900065 Page 1 of 9ARGUMENT Plaintiff argues that the purchase and sale agreement violates the Interstate Land Sales Full Disclosure Act, 15 U.S.C. § 1701 et seq. (“ILSA”) because Snavely is insufficiently obligated to complete construction of the condominium unit within the two-year deadline. Plaintiff’s Motion must be denied because it fails to consider the Contract in its entirety, including the severability clauses, and misconstrues Florida contract law. On July 18, 2005, Plaintiff and Snavely entered into a purchase and sale agreement for the construction and sale of Unit 602C at Summer Cove on Siesta in Sarasota County (the “Contract”). Snavely completed construction of Unit 602C in two years as required by the Contract, yet Plaintiff seeks to escape its contractual obligations to close by now claiming that the Contract violates the ILSA. The Contract provides that construction of the unit must be completed in two years: The Unit... shall be completed not later than two (2) years from the date Purchaser signs this Contract. However, the date for completion may be extended by reason of delays incurred by circumstances beyond the Seller’s control, such as acts of God, or any other grounds cognizable in Florida contract law [such] as impossibility or frustration of performance, including, without limitation, delays occasioned by rain, wind and lightning storms. I? is the intention of the parties that this sale qualify for the exemption provided by 15 U.S.C. Section 1702(a)(2), and that nothing contained in this Agreement shall be construed or so operate as to any obligations of Seller or rights of Buyer in-a manner which would render said exemption inapplicable. Subject to the provisions of this paragraph, time is of the essence to this Agreement. Buyer shall not be allowed to take possession of the Unit prior to Closing the purchase. Contract, § 4.a. (emphasis added). The contractual provision set forth above is governed further by the following severability clause: If any provision or part of this Agreement is contrary to, prohibited by or Filed for Record 08/20/2008 03:35 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-87900065 Page 2 of 9deemed invalid under applicable law or regulation, such provision shall be inapplicable and deemed omitted to the extent so contrary, prohibited or invalid, but the remainder hereof shall not be invalidated thereby and shall be given full force and effect so far as possible. Id., { 10.p. The ILSA is a consumer protection measure to prevent fraud in the purchase and sale of single family homes and condominiums by requiring that developers make certain disclosures. The ILSA requires filing a statement of record with HUD and that the developer provide a printed property report to prospective buyers, unless the development meets one of the various exceptions set forth in Section 1702. 15 U.S.C. §§ 1702 — 1705, 1707. One of the exceptions in Section 1702 provides that the developer is exempt from the reporting requirements of ILSA if the purchase and sale agreement obligates the developer to complete construction within two years of the signing of the contract. 15 U.S.C. § 1702(a)(2). Whether a contract “obligates” a developer to build in two years is a matter of state contract law. Hardwick Properties, Inc. v. Newbern, 711 So.2d 35, 38 (Fla. 1° DCA 1998), quoting Samara Development Corp. v. Marlow, 556 So.2d 1097, 1100 (Fla. 1990). The Contract here is exempt from ILSA because it obligates Snavely to complete construction in two years, subject only to the standard defenses that are recognized by Florida courts, such as impossibility or frustration of performance. Jn its Guidelines, the U.S. Department of Housing and Urban Development (“HUD”) states that contracts will not be exempt under 1702(a)(2) “if they allow nonperformance by the seller at the seller’s discretion.” Supplemental Information to Part 1710: Guidelines for Exemptions Available Under the Interstate Land Sales Full Disclosure Act, at www.hud.gov/offices/hsg/sth/ils/ilsexemp.cfm Filed for Record 08/20/2008 03:35 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-87900065 Page 3 of 9(“Guidelines”); Also, 15 U.S.C. § 1715.1 The conditions found in the parties’ Contract do not allow nonperiormance at Snavely’s discretion. Conditions to timely completion of construction will not defeat an ILSA exemption if such conditions are “legally recognized as defenses to contract actions in the jurisdiction where the building is being erected.” Guidelines, supra.; Darbie v. State, 711 So.2d 1280, 1282 (Fla. 3d DCA 1998), citing Chevron, USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837; 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Florida law recognizes force majeure defenses to timely completion, including weather events like hurricanes and excessive rain. Florida Power Corp. v. Tallahassee, 154 Fla. 638 (1944) (power interruption resulting from hurricane is excusable under force majeure clause); Devco Dev. Corp. v. Hooker Homes, Inc., 518 So.2d 922 (Fla. 2d DCA 1987); and Castiedio v. Sweetwater Homes of Citrus, Inc., 843 So.2d 1019, 1021 (Fla. 5* DCA 2003). Delays occasioned by governmental agencies are also excusable as force majeure events, as are material and manpower shortages. Leon County v. Gluesenkamp, 873 So.2d 460 (Fla. 1° DCA 2004) (governmental actions recognizable excusable delays); St. Joe Paper Co. v. f° la. Dept. of Environ. Regulations, 371 So.2d 178, 180 (Fla. 1° DCA 1979); Hilton Oil Transport v. Oil Transport Co., S.A., 659 So.2d 1141 (Fla. 3d DCA 1995) (governmental delays), Hardwick Properties, supra, at 37; and Century 21 Admiral’s Port, Inc. v. Novak, 339 So.2d 677 (Fla. 3d DCA 1976) (delays caused by material and labor shortages valid defenses to contract performance). 1 Where Congress has provided a legislative delegation to an agency of the federal government, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by an administrative Filed for Record 08/20/2008 03:35 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-87900065 Page 4 of 9In short, valid force majeure events are those unexpected events that contracting parties do not and cannot anticipate at the time of execution and make performance impossible through no fault of the nonperforming party. Florida Power Corp, supra, at 045. Similarly, commercial frustration of performance, as opposed to impossibility of performance, is a related but distinct defense and excuses performances where it 1s possible to perform but that the event is such that it “totally or nearly destroys the purpose of the agreement so as to excuse performance.” Valencia Center, Inc. v. Publix Super Markets, Inc., 464 So.2d 1267, 1269 (Fla. 3d DCA 1985). An event that is outside the control of the parties and so impacts construction that it makes performance all but impracticable cannot be said to be at the discretion of the developer so as to defeat an ILSA exemption. Guidelines, supra. In this case, the Contract explicitly limits any extensions to the two-year limitation to _ only those incurred “by reason of delays incurred by circumstances beyond the Seller’s control,” whether those delays are occasioned by the long-recognized doctrines of impossibility or frustration of performance. Contract, {4. There can be no argument, therefore, that the Contract gives Snavely discretion to extend the deadline for performance or that the Contract language renders Snavely’s obligation to perform within the two-year deadline “illusory.” Such argument, to the extent that Plaintiff makes it, is contradicted by the very language of the agreement. Given the difficult legal standard to be met in establishing either the doctrines of impossibility or frustration of performance, one cannot claim that Snavely’s obligation in this case was illusory. Snavely certainly could not have, and did not, at its own discretion fail or refuse to perform. Surely, had Snavely believed it could whimsically ignore the two-year gp agency. Darbie v. State, 711 So.2d 1280, 1282 (Fla. 3d DCA 1998), citing Chevron, USA, Inc. v. Natural Resources 5 Filed for Record 08/20/2008 03:35 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-87900065 Page 5 of 9deadline imposed by the Contract, it would not have worked as hard as it did to set the closing date mere days before its expiration. See, Affidavit of Bryan Nichols. Instead, Snavely endeavored to meet its contractual obligations, only to be met with a buyer that would not fulfill his. The ILSA was meant to protect naive buyers from fraudulent practices by builders, not to give a buyer now reluctant to close on his unit because of a downturn in the real estate market an escape hatch. No provision or condition in the Contract releases Snavely from its obligations to complete construction within two years. Had Snavely breached the Contract and failed to timely construct the unit, it would have faced very real economic claims by Plaintiff. Fortunately, this did not occur, as the unit was timely completed. Ironically, however, it is now Snavely that 1s suffering economic harm as a result of Plaintiff's refusal to close. Assuming for the sake of argument that the conditions in the Contract are not valid, improperly limit Plaintiff’s remedies or are deemed so broad so as to make Snavely’s obligations illusory, the severability clauses in Paragraphs 4 and 10(p) preserves Snavely’s ILSA exemption. A severability clause, combined with a savings clause, is a “logical and prudent safeguard” in contractual relationships. Combs v. Associated Electric Co-op, inc., 752 F.Supp. 1131, 1138 (U.S.D.C, 1990). Whether a severability clause is to be given effect is a matter of state law. Jackson v. Cintas Corp., 425 F.3d 1313, 1317 (11" Cir. 2005). Florida law requires that contracts are interpreted in such a way so as to give effect to every provision, “unless such an interpretation distorts the plain meaning of the agreement.” Hillsborough County Aviation Authority v. Cone Bros., 285 So.2d 619, 621 (Fla. 2d DCA 1973). Defense Council, Ine., 467 U.S. 837, 104 S.CT, 2778, 81 L.Ed.2d 694 (1984), 6 Filed for Record 08/20/2008 03:35 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-87900065 Page 6 of 9The intent of the parties is the guiding light for the court in construction of a contract. Okeechobee Landfill, Inc. v. Republic Services of Florida, L.P., 931 S0.2d 942, 944-45 (Fla. 4 DCA 2006). The intent of the parties is determined by examination of the circumstances at the time the parties entered into the contract. Huntington On The Green Condominium v. Lemon Tree I- Condominium, 874 So.2d 1, 4-5 (Fla. 5" DCA 2004); quoting, Triple E Dev. Co. v. Floridagold Citrus Corp., 51 So.2d 435, 438-39 (Fla. 1951). The language of the contract itself 1s the “best evidence” of the parties’ intent. Royal Oak Landing Homeowners’ Ass’n, Inc. v. Pelletier, 620 So.2d 786, 788 (Fla. 4™ DCA 1993). For the purposes of the ILSA, the courts are required to look at the parties’ intent at the time they entered into the contract when evaluating whether they intended for an exemption to apply to their transaction. Grove f owers, Ine. vy. Lopez, 467 $o.2d 358, 361 (Fla. 3d DCA 1985). The Contract demonstrates a clear intent of both parties to meet to exemption requirements of 1702(a)(2). Nothing, of course, can be more clear than the Contract’s explicit statement that: It is the intention of the parties that this sale qualify for the exemption provided by 15 U.S.C. Section 1702(a)(2), and that nothing contamed in this Agreement shall be construed or so operate as to any obligations of Seller or rights of Buyer in a manner which would render said exemption inapplicable.” [Emphasis added. | Contract, 44. The parties agreed that if any portion of the Contract is deemed illegal or violates the ILSA, it should not be operative. Where an alleged illegal provision of a contract does not go to the essence of the contract, the illegal portion should be stricken and the rest of the contract given its full force and effect. Slusher v. Greenfield, 488 So.2d 579, 580 (Fla. 4" DCA 1986). Filed for Record 08/20/2008 03:35 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-87900065 Page 7 of 9The essence of the Contract is for Snavely to construct and sell a unit at Summer Cove on Siesta for Plaintiff and for Plaintiff to pay the agreed price. Striking any condition from the Contract which may render the exemptions allowed under the ILSA would not defeat this fundamental purpose; rather, it would merely be a reflection of the parties’ intent. Therefore, if any of the conditions in Paragraph 4 of the Contract violate the ILSA, as Plaintiff assumedly asserts, then such conditions must be stricken to preserve the parties’ intent. Thus, the severability clauses here removes any doubt, if there is any, that Snavely obligated itself to complete construction in two years’ time. As one court stated, [A]n illegal portion of a bilateral contract may be eliminated, leaving the remainder of the contract in full force and effect when, the illegal portion of the contract does not go to its essence, and where with the illegal portion eliminated, there still remains of the contract valid legal promises on one side which are wholly supported by valid legal promises on the other. In re Voltarel, 236 B.R. 464 (M.D. Fla. 1999) (internal quotations omitted). If the allegedly problematic provisions of the Contract are stricken, there would still remain Snavely’s valid legal promise to construct the Unit in two years wholly supported by Plaintiff's valid legal promise to pay for the Unit. Because the fundamental purpose of the Contract is for the construction and sale of a unit in the Summer Cove at Siesta project, and because it was the intention of the parties that their transaction should qualify for the exemptions provided by 15 U.S.C. § 1702(a)(2), nothing contained in the Contract should be construed in a manner which would render the exemption inapplicable. Drafting an agreement in order to utilize the exemptions provided in 1702 demonstrates that the parties intended to use a safe harbor provision expressly made available to them by Congress. Hardwick Properties, supra, at 39-40 ULSA’s two-year completion Filed for Record 08/20/2008 03:35 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-87900065 Page 8 of 9exemption upheld); Marco Bay Associates v. Vandewalle, 472 So.2d 472 (Fla. 2d DCA 1985) (ILSA’s two-year completion exemption applied); and Mayersdorf v. Paramount Boynton, LLC, 910 So.2d 887 (Fla. 4" DCA 2005) (ILSA’s 100-lot exemption upheld). Nothing Plaintiff cites to compels the slightest conclusion to the contrary and thus, Plaintiff's motion should be denied. CONCLUSION For all the above reasons, Plaintiff's Motion for Summary Judgment should be denied. CERTIFICATE OF SERVICE [HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via facsimile and by U.S. Mail to: Sheryl A. Edwards, Esq., The Edwards Law Firm, PL, 1901 fi Morrill Street , Sarasota, FL 34236, on this A o day of August, 2008. KIRK w= PINKERTON, P.A. Plaza at Five Points 50 Central Avenue, Suite 700 Sarasota, Florida 34236 _ Filed for Record 08/20/2008 03:35 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-87900065 Page 9 of 9