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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.
ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM
ee ee eS ee ee ——e———————— eee
TO THE SECOND AMENDED COMPLAINT
Defendant, Snavely Siesta Associates, LLC (“Snavely”), an Ohio Limited Liability
Company, answers the Second Amended Complaint and states:
1, Admits for jurisdictional purposes only and deny for any other purpose.
2. Based on information and belief, admits.
3, Admits.
4. Admits.
5. Admits,
6. Admits.
7. Admits.
8. Admits.
9, Admits that Snavely recorded a First Amendment to the Declaration, and admits
it provided notice to Plaintiff, but denies all other allegations of Paragraph 9.
Filed for Record 06/04/2008 11:05 AM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-56559481 Page 1 of 1010. Paragraph 10 states a legal conclusion to which no response is required, but to the
extent that Paragraph 10 makes any factual allegations they are denied.
11. The allegations of Paragraph 11 and its subsections are legal conclusions to which
no response is required but, to the extent that Paragraph 11 and its subsections make any factual
allegations, they are denied.
12. Admits that Senker sent the letter attached to the Second Amended Complaint as
Exhibit B but denies that Senker had a right to terminate the contract and denies all other
allegations of Paragraph 12.
13. Admits that Snavely has not returned the deposits to Senker, but denies that
Senker had any right to return of the deposits and denies any other allegations of Paragraph 13.
14. Paragraph 14 states a legal conclusion to which no response is required, but to the
extent that Paragraph 14 makes any factual allegations they are denied . Affirmatively alleges
that the Contract speaks for itself.
15. Paragraph 15 states legal conclusions to which no response is required, but to the
extent that Paragraph 15 makes any factual allegations they are denied. Affirmatively alleges
that the Contract speaks for itself.
16. Denies.
17. Demis.
18. Denies.
19. Dentes.
20. Without information.
21. Paragraph 21 states a legal conclusion to which no response is required, but to the
extent that Paragraph 21 makes any factual allegations they are denied.
2
Filed for Record 06/04/2008 11:05 AM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-56559481 Page 2 of 10COUNT I- DECLARATORY JUDGMENT
22. Admitted for wurisdictional purposes only and denied for any other purpose.
23. Snavely restates its responses in Paragraphs 1 through 21 above as 1f set forth
fully herein.
24. Admits.
25. Admits that the First Amendment was recorded and notice was provided to
Senker, but denies all other allegations of Paragraph 25..
26. Paragraph 26 states a legal conclusion to which no response is required, but to the
extent that Paragraph 26 makes any factual allegations they are denied.
27. Paragraph 27 and all of its subparts are denied, including
a. Denied.
b. Denied.
c. Denied.
d. Denied.
e. Denied.
28. Paragraph 28 states a legal conclusions to which no response is required but to the
extent that Paragraph 28 contains any factual allegations they are denied. Affirmatively alleges
that none of the changes alleged in Paragraph 27 and its subparts are material or adverse to
senker.
WHEREFORE, Snavely requests this Court to enter an order dismissing the Second
Amended Complaint or, otherwise in its favor, for reasonable attorney’s fees, costs and for such
other relief as this Court deems just and proper.
Filed for Record 06/04/2008 11:05 AM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-56559481 Page 3 of 10COUNT II - RESCISSION
29. Admitted for jurisdictional purposes only and deny for any other purpose.
30. Snavely restates its responses in Paragraphs | through 21 above as if set forth
fully herein.
31. Admits the First Amendment was recorded and notice was provided to Senker,
but denies all other allegations of Paragraph 31.
32. Paragraph 32 states a legal conclusion to which no response is required, but to the
extent that Paragraph 32 makes any factual allegations they are denied.
33. Paragraph 33 and all of its subparts are denied.
34. Admits that Senker sent the letter attached to the Second Amended Complaint as
Exhibit B but denies that Senker had a right to terminate the Contract and denies any other
allegations of Paragraph 34.
35. Admits that Snavely has not returned any deposits to Senker but deny that Senker
had a right to return of its deposit and denies any other allegations of Paragraph 35.
WHEREFORE, Snavely respectfully requests and Order from this Court dismissing the
Second Amended Complaint or, otherwise in its favor, for its reasonable attorney’s fees and
costs and for such other relief as this Court deems just and proper.
COUNT III - BREACH OF CONTRACT
36. Admitted for jurisdictional purposes only and denied for any other purpose.
37. Snavely restates its responses in Paragraphs | through 21 above as if set forth
fully herein.
38. Admits.
39. Denies.
Filed for Record 06/04/2008 11:05 AM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-56559481 Page 4 of 1040, Denies.
WHEREFORE, Snavely respectfully requests an Order from this Court dismissing the
Second Amended Complaint or, otherwise in its favor, for its reasonable attorney's fees and
costs and for such other relief as this Court deems just and proper.
COUNT IV - VIOLATION OF INTERSTATE LAND SALES
FULL DISCLOSURE ACT
41. Admitted for jurisdictional purposes only and denied for any other purpose.
42. Snavely restates its responses in Paragraphs 1 through 21 above as if set forth
fully herein.
43. Admits. Affirmatively alleges that the Contract speaks for itself.
44. Paragraph 44 states a legal conclusion to which no response is required, but to the
extent that Paragraph 44 makes any factual allegations they are denied. Affirmatively allege that
the Contract speaks for itself.
45, Denies.
AG. Denies.
47. Denies.
WHEREFORE, Snavely respectfully requests an Order from this Court dismissing the
Second Amended Complaint or, otherwise in its favor, for its reasonable attorney’s fees and
costs and for such other relief as this Court deems just and proper.
AFFIRMATIVE DEFENSES
l. As a first affirmative defense, the Second Amended Complaint fails to state a
cause of action.
5
Filed for Record 06/04/2008 11:05 AM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-56559481 Page 5 of 102. As a second affirmative defense, Plaintiff's claim for breach of contract in Count
Ill ig unfounded and frivolous because the TCO for Unit 602-C was issued on June 14, 2007,
Plaintiff was noticed for closing on July 16, 2007, Plaintiff signed for the notice on June 25,
2007, and Plaintiff failed to show for the closing on July 16, 2007 when Snavely was ready,
willing and able to close on Unit 602-C. As such, Plaintiff was in breach of the Contract and is
barred from asserting that Snavely breached the Contract.
3. As a third affirmative defense, in the alternative, should this Court find that the
Contract was not completed within the two-year deadline, Plaintiffs claim for breach of contract
in Count III is barred by the terms of the Contract, which grant the Seller an extension to the date
of completion for delays incurred in circumstances beyond the Seller’s control, such as Acts of
God or any of the grounds cognizable in Florida’s Contract Law for impossibility or frustration
of performance, including, without limitation, delays occasioned by rain, wind and lightening
storms. Affirmatively allege that notably, the 2005 Atlantic hurricane season was the most
active Atlantic hurricane season in recorded history, not least of which was Hurricane Wilma,
which caused significant damage to the Gulf Coast of Florida. Accordingly, even though the
Contract was signed in May 2005, Snavely could not commence on the Summer Cove at Siesta
Project until after October 2005.
4, As a fourth affirmative defense, Plaintiffs purported notice of cancellation was
not made in a timely manner.
5. As a fifth affirmative defense, Defendant has substantially performed all of its
obligations under the contract.
6. As a sixth affirmative defense, Plaintiff failed to mitigate its damages.
Filed for Record 06/04/2008 11:05 AM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-56559481 Page 6 of 107. As a seventh affirmative defense, Plaintiff failed to give notice and an opportunity
to cure of any purported breach of the contract.
8. As an eighth affirmative defense, Plaintiff's claim in Count IV that Snavely
violated the ILSA 15 U.S.C. § 1701-1720 fails because Snavely is exempt pursuant to 15 U.S.C.
§ :1702(a)(2).
9. As aninth affirmative defense, Plaintiff's claim in Count IV that Snavely violated
the ILSA 15 U.S.C. § 1701-1720 is barred by the statute of limitations.
COUNTERCLAIM
Defendant, Snavely Siesta Associate, LLC (“Snavely), counterclaims against Plaintiff,
Richard C. Senker, Trustee of the Richard C. Senker and Patricia A. Senker Land Trust
(“Senker’’), and states:
1. That on or about July 18, 2005, Senker and Snavely entered into a condominium
purchase agreement (“Purchase Agreement”) for the purchase of Unit 602C of Summer Cove on
Siesta, a condominium recorded in the Public Records of Sarasota County, Florida
(“Condominium”). A copy of that Agreement is attached to this Counterclaim as Exhibit A.
2. Senker deposited money toward the purchase of Unit 602C in the amount of
$283,050.00.
3. Paragraph 8 of the Purchase Agreement states:
Default by Buyer. Should Buyer fail to make any of the payments due hereunder,
as hereinabove scheduled, or fail or refuse to execute the instruments required to
close this transaction on the scheduled date, or refuse to pay any costs or other
sums required by this Agreement, or otherwise default hereunder, then Seller may
declare this Agreement terminated and retain all monies paid by Buyer as
liquidated and agreed upon damages which Seller shall have sustained and
suffered as a result of Buyer’s default hereinafter, and thereupon the parties
hereto will be released and relieved from al! obligations hereunder. The
provisions herein contained for liquidated and agreed upon damages are a bona
fide provision for such and are not a penalty, the parties understand that by reason
7
Filed for Record 06/04/2008 11:05 AM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-56559481 Page 7 of 10of the withdrawal of the Unit from sale to the general public at a time when other
parties would be interested in purchasing the Unit, that Seller will have sustained
damages if Buyer defaults, which damages will be substantial but will not be
capable of determination with mathematical precision and, therefore, as aforesaid,
the provision for liquidated and agreed upon damages has been incorporated in
this Agreement, as a provision beneficial to both parties.
4. Pursuant to the Purchase Agreement, notice was provided to Senker scheduling
the closing on the above-referenced Unit for 10:00 a.m., July 16, 2007.
5. Snavely was ready, willing and able to close the sale of the Unit on the closing
date.
6. Senker, however, failed to close on the acquisition of the Unit pursuant to the
terms of the Purchase Agreement.
7. Thereby, Snavely, through its attorneys, provided notice to counsel for Senker by
letter dated August 14, 2007 that Senker was in default under the terms and provisions of the
Purchase Agreement and that Snavely exercised its remedy to terminate the Purchase Agreement
and retain the earnest money deposit and the accrued interest thereon as liquidated damages,
pursuant to the Purchase Agreement.
8. Also, pursuant to Paragraph 10k the Purchase Agreement provides:
10. Miscellaneous Provisions.
k. In the event of litigation to enforce any of the terms and provisions
of this Agreement, the prevailing party shail be entitled to receive all reasonable
attorney’s and paralegal’s fees incurred therein (including fees for appeals
bankruptcy and post judgment proceedings) together with costs and
disbursements. In no event shall said attorney’s fees be based on a contingency
basis. Attorney’s fees shall be computed on an hourly basis. Buyer and Seller do
hereby agree that in any suit or proceeding brought to enforce rights under this
Agreement, such suit shall be brought in the Circuit Court in and for Sarasota
County, Florida; or the United States District Court, Middle District of Florida, as
the same is now constituted or any court in the future that may be the successor to
the courts contemplated herein. Buyer does hereby waive the night to trial by jury
and consents to a trial by the court without a jury.
8
Filed for Record 06/04/2008 11:05 AM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-56559481 Page 8 of 109, Snavely has retained undersigned counsel to represent it in this lawsuit and will
be charged reasonable attorney fees in connection therewith.
10. All conditions precedent have been met prior to filing this counterclaim.
COUNT I - Breach of Contract
11. Thisis an action for breach of contract involving damages in excess of $15,000.
12. Snavely realleges Paragraphs | through 10 above as though set forth fully herein.
13. Senker breached the Purchase Agreement when he failed to close on the
acquisition of the Unit pursuant to the terms of the Purchase Agreement.
14. Asaconsequence, Snavely has been damaged.
15. Snavely has retained the undersigned attorneys to represent it in this matter, 1s
obligated to pay them a reasonable fee, and has the right to recover attorney’s fees and costs
from Senker under the Purchase Agreement.
WHEREFORE, Snavely demands judgment against Senker for damages, attorney’s fees,
interest, costs and such other further relief as this Court deems just and proper.
Filed for Record 06/04/2008 11:05 AM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-56559481 Page 9 of 10CERTIFICATE OF SERVICE
[HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by
by U.S. Mail to: Sheryl A. Edwards, Esq., The Edwards Law Firm, PL, 1901 Morrill Street ,
Sarasota, FL 34236, on this of day of June, 2008.
KIRK = PINKERTON, P.A.
Plaza at Five Points
50 Central Avenue, Suite 700
Sarasota, Florida 34236
(941) 364-2449 Tel
(941) 364-2490 Fax
Attorneys for Defends yt.
Ae fi
Filed for Record 06/04/2008 11:05 AM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-56559481 Page 10 of 10
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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. ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM ee ee eS ee ee ——e———————— eee TO THE SECOND AMENDED COMPLAINT Defendant, Snavely Siesta Associates, LLC (“Snavely”), an Ohio Limited Liability Company, answers the Second Amended Complaint and states: 1, Admits for jurisdictional purposes only and deny for any other purpose. 2. Based on information and belief, admits. 3, Admits. 4. Admits. 5. Admits, 6. Admits. 7. Admits. 8. Admits. 9, Admits that Snavely recorded a First Amendment to the Declaration, and admits it provided notice to Plaintiff, but denies all other allegations of Paragraph 9. Filed for Record 06/04/2008 11:05 AM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-56559481 Page 1 of 1010. Paragraph 10 states a legal conclusion to which no response is required, but to the extent that Paragraph 10 makes any factual allegations they are denied. 11. The allegations of Paragraph 11 and its subsections are legal conclusions to which no response is required but, to the extent that Paragraph 11 and its subsections make any factual allegations, they are denied. 12. Admits that Senker sent the letter attached to the Second Amended Complaint as Exhibit B but denies that Senker had a right to terminate the contract and denies all other allegations of Paragraph 12. 13. Admits that Snavely has not returned the deposits to Senker, but denies that Senker had any right to return of the deposits and denies any other allegations of Paragraph 13. 14. Paragraph 14 states a legal conclusion to which no response is required, but to the extent that Paragraph 14 makes any factual allegations they are denied . Affirmatively alleges that the Contract speaks for itself. 15. Paragraph 15 states legal conclusions to which no response is required, but to the extent that Paragraph 15 makes any factual allegations they are denied. Affirmatively alleges that the Contract speaks for itself. 16. Denies. 17. Demis. 18. Denies. 19. Dentes. 20. Without information. 21. Paragraph 21 states a legal conclusion to which no response is required, but to the extent that Paragraph 21 makes any factual allegations they are denied. 2 Filed for Record 06/04/2008 11:05 AM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-56559481 Page 2 of 10COUNT I- DECLARATORY JUDGMENT 22. Admitted for wurisdictional purposes only and denied for any other purpose. 23. Snavely restates its responses in Paragraphs 1 through 21 above as 1f set forth fully herein. 24. Admits. 25. Admits that the First Amendment was recorded and notice was provided to Senker, but denies all other allegations of Paragraph 25.. 26. Paragraph 26 states a legal conclusion to which no response is required, but to the extent that Paragraph 26 makes any factual allegations they are denied. 27. Paragraph 27 and all of its subparts are denied, including a. Denied. b. Denied. c. Denied. d. Denied. e. Denied. 28. Paragraph 28 states a legal conclusions to which no response is required but to the extent that Paragraph 28 contains any factual allegations they are denied. Affirmatively alleges that none of the changes alleged in Paragraph 27 and its subparts are material or adverse to senker. WHEREFORE, Snavely requests this Court to enter an order dismissing the Second Amended Complaint or, otherwise in its favor, for reasonable attorney’s fees, costs and for such other relief as this Court deems just and proper. Filed for Record 06/04/2008 11:05 AM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-56559481 Page 3 of 10COUNT II - RESCISSION 29. Admitted for jurisdictional purposes only and deny for any other purpose. 30. Snavely restates its responses in Paragraphs | through 21 above as if set forth fully herein. 31. Admits the First Amendment was recorded and notice was provided to Senker, but denies all other allegations of Paragraph 31. 32. Paragraph 32 states a legal conclusion to which no response is required, but to the extent that Paragraph 32 makes any factual allegations they are denied. 33. Paragraph 33 and all of its subparts are denied. 34. Admits that Senker sent the letter attached to the Second Amended Complaint as Exhibit B but denies that Senker had a right to terminate the Contract and denies any other allegations of Paragraph 34. 35. Admits that Snavely has not returned any deposits to Senker but deny that Senker had a right to return of its deposit and denies any other allegations of Paragraph 35. WHEREFORE, Snavely respectfully requests and Order from this Court dismissing the Second Amended Complaint or, otherwise in its favor, for its reasonable attorney’s fees and costs and for such other relief as this Court deems just and proper. COUNT III - BREACH OF CONTRACT 36. Admitted for jurisdictional purposes only and denied for any other purpose. 37. Snavely restates its responses in Paragraphs | through 21 above as if set forth fully herein. 38. Admits. 39. Denies. Filed for Record 06/04/2008 11:05 AM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-56559481 Page 4 of 1040, Denies. WHEREFORE, Snavely respectfully requests an Order from this Court dismissing the Second Amended Complaint or, otherwise in its favor, for its reasonable attorney's fees and costs and for such other relief as this Court deems just and proper. COUNT IV - VIOLATION OF INTERSTATE LAND SALES FULL DISCLOSURE ACT 41. Admitted for jurisdictional purposes only and denied for any other purpose. 42. Snavely restates its responses in Paragraphs 1 through 21 above as if set forth fully herein. 43. Admits. Affirmatively alleges that the Contract speaks for itself. 44. Paragraph 44 states a legal conclusion to which no response is required, but to the extent that Paragraph 44 makes any factual allegations they are denied. Affirmatively allege that the Contract speaks for itself. 45, Denies. AG. Denies. 47. Denies. WHEREFORE, Snavely respectfully requests an Order from this Court dismissing the Second Amended Complaint or, otherwise in its favor, for its reasonable attorney’s fees and costs and for such other relief as this Court deems just and proper. AFFIRMATIVE DEFENSES l. As a first affirmative defense, the Second Amended Complaint fails to state a cause of action. 5 Filed for Record 06/04/2008 11:05 AM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-56559481 Page 5 of 102. As a second affirmative defense, Plaintiff's claim for breach of contract in Count Ill ig unfounded and frivolous because the TCO for Unit 602-C was issued on June 14, 2007, Plaintiff was noticed for closing on July 16, 2007, Plaintiff signed for the notice on June 25, 2007, and Plaintiff failed to show for the closing on July 16, 2007 when Snavely was ready, willing and able to close on Unit 602-C. As such, Plaintiff was in breach of the Contract and is barred from asserting that Snavely breached the Contract. 3. As a third affirmative defense, in the alternative, should this Court find that the Contract was not completed within the two-year deadline, Plaintiffs claim for breach of contract in Count III is barred by the terms of the Contract, which grant the Seller an extension to the date of completion for delays incurred in circumstances beyond the Seller’s control, such as Acts of God or any of the grounds cognizable in Florida’s Contract Law for impossibility or frustration of performance, including, without limitation, delays occasioned by rain, wind and lightening storms. Affirmatively allege that notably, the 2005 Atlantic hurricane season was the most active Atlantic hurricane season in recorded history, not least of which was Hurricane Wilma, which caused significant damage to the Gulf Coast of Florida. Accordingly, even though the Contract was signed in May 2005, Snavely could not commence on the Summer Cove at Siesta Project until after October 2005. 4, As a fourth affirmative defense, Plaintiffs purported notice of cancellation was not made in a timely manner. 5. As a fifth affirmative defense, Defendant has substantially performed all of its obligations under the contract. 6. As a sixth affirmative defense, Plaintiff failed to mitigate its damages. Filed for Record 06/04/2008 11:05 AM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-56559481 Page 6 of 107. As a seventh affirmative defense, Plaintiff failed to give notice and an opportunity to cure of any purported breach of the contract. 8. As an eighth affirmative defense, Plaintiff's claim in Count IV that Snavely violated the ILSA 15 U.S.C. § 1701-1720 fails because Snavely is exempt pursuant to 15 U.S.C. § :1702(a)(2). 9. As aninth affirmative defense, Plaintiff's claim in Count IV that Snavely violated the ILSA 15 U.S.C. § 1701-1720 is barred by the statute of limitations. COUNTERCLAIM Defendant, Snavely Siesta Associate, LLC (“Snavely), counterclaims against Plaintiff, Richard C. Senker, Trustee of the Richard C. Senker and Patricia A. Senker Land Trust (“Senker’’), and states: 1. That on or about July 18, 2005, Senker and Snavely entered into a condominium purchase agreement (“Purchase Agreement”) for the purchase of Unit 602C of Summer Cove on Siesta, a condominium recorded in the Public Records of Sarasota County, Florida (“Condominium”). A copy of that Agreement is attached to this Counterclaim as Exhibit A. 2. Senker deposited money toward the purchase of Unit 602C in the amount of $283,050.00. 3. Paragraph 8 of the Purchase Agreement states: Default by Buyer. Should Buyer fail to make any of the payments due hereunder, as hereinabove scheduled, or fail or refuse to execute the instruments required to close this transaction on the scheduled date, or refuse to pay any costs or other sums required by this Agreement, or otherwise default hereunder, then Seller may declare this Agreement terminated and retain all monies paid by Buyer as liquidated and agreed upon damages which Seller shall have sustained and suffered as a result of Buyer’s default hereinafter, and thereupon the parties hereto will be released and relieved from al! obligations hereunder. The provisions herein contained for liquidated and agreed upon damages are a bona fide provision for such and are not a penalty, the parties understand that by reason 7 Filed for Record 06/04/2008 11:05 AM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-56559481 Page 7 of 10of the withdrawal of the Unit from sale to the general public at a time when other parties would be interested in purchasing the Unit, that Seller will have sustained damages if Buyer defaults, which damages will be substantial but will not be capable of determination with mathematical precision and, therefore, as aforesaid, the provision for liquidated and agreed upon damages has been incorporated in this Agreement, as a provision beneficial to both parties. 4. Pursuant to the Purchase Agreement, notice was provided to Senker scheduling the closing on the above-referenced Unit for 10:00 a.m., July 16, 2007. 5. Snavely was ready, willing and able to close the sale of the Unit on the closing date. 6. Senker, however, failed to close on the acquisition of the Unit pursuant to the terms of the Purchase Agreement. 7. Thereby, Snavely, through its attorneys, provided notice to counsel for Senker by letter dated August 14, 2007 that Senker was in default under the terms and provisions of the Purchase Agreement and that Snavely exercised its remedy to terminate the Purchase Agreement and retain the earnest money deposit and the accrued interest thereon as liquidated damages, pursuant to the Purchase Agreement. 8. Also, pursuant to Paragraph 10k the Purchase Agreement provides: 10. Miscellaneous Provisions. k. In the event of litigation to enforce any of the terms and provisions of this Agreement, the prevailing party shail be entitled to receive all reasonable attorney’s and paralegal’s fees incurred therein (including fees for appeals bankruptcy and post judgment proceedings) together with costs and disbursements. In no event shall said attorney’s fees be based on a contingency basis. Attorney’s fees shall be computed on an hourly basis. Buyer and Seller do hereby agree that in any suit or proceeding brought to enforce rights under this Agreement, such suit shall be brought in the Circuit Court in and for Sarasota County, Florida; or the United States District Court, Middle District of Florida, as the same is now constituted or any court in the future that may be the successor to the courts contemplated herein. Buyer does hereby waive the night to trial by jury and consents to a trial by the court without a jury. 8 Filed for Record 06/04/2008 11:05 AM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-56559481 Page 8 of 109, Snavely has retained undersigned counsel to represent it in this lawsuit and will be charged reasonable attorney fees in connection therewith. 10. All conditions precedent have been met prior to filing this counterclaim. COUNT I - Breach of Contract 11. Thisis an action for breach of contract involving damages in excess of $15,000. 12. Snavely realleges Paragraphs | through 10 above as though set forth fully herein. 13. Senker breached the Purchase Agreement when he failed to close on the acquisition of the Unit pursuant to the terms of the Purchase Agreement. 14. Asaconsequence, Snavely has been damaged. 15. Snavely has retained the undersigned attorneys to represent it in this matter, 1s obligated to pay them a reasonable fee, and has the right to recover attorney’s fees and costs from Senker under the Purchase Agreement. WHEREFORE, Snavely demands judgment against Senker for damages, attorney’s fees, interest, costs and such other further relief as this Court deems just and proper. Filed for Record 06/04/2008 11:05 AM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-56559481 Page 9 of 10CERTIFICATE OF SERVICE [HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by by U.S. Mail to: Sheryl A. Edwards, Esq., The Edwards Law Firm, PL, 1901 Morrill Street , Sarasota, FL 34236, on this of day of June, 2008. KIRK = PINKERTON, P.A. Plaza at Five Points 50 Central Avenue, Suite 700 Sarasota, Florida 34236 (941) 364-2449 Tel (941) 364-2490 Fax Attorneys for Defends yt. Ae fi Filed for Record 06/04/2008 11:05 AM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008509 NC Dkt-56559481 Page 10 of 10