defenses to specific performance florida

2021)(elements of injunction pending appeal); In re Gateway Radiology Consultants, P.A., 983 F.3d 1239, 1254 (11th Cir. For buyers, maybe market prices changed and what was once a great bargain is now a bad deal. In late October, the church learned that there would be a delay in getting the needed zoning changes: zoning hearings would drag on for another 6 months. PN&r8<8;U,: )~h[qj Still, there are nuances in how specific performance must be asked for and proven, as well as when it will be legally awarded, which depends on specific state statutes and case law. Specific Performance and Florida Contract Law When it comes to contract disputes, the most common remedy involves financial restitution. So, if you can purchase another similar item elsewhere, then specific performance is not likely the remedy. Most people think of money damages when they think of lawsuits dealing with real estate contracts or land. "Impossibility Of Performance" - Linkhorst & Hockin, P.A. Northern District:Johnson v. Lt. McKinney, 2023 WL 2616024, *2 (N.D. Fla. Jan. 25, 2023); Pernell v. Florida Board of Governors of State University System, 2022 F.Supp.3d -2022 WL 16985720, *13 (N.D. Fla. Nov. 17, 2022);Rare Breed Triggers, LLC v. Big Daddy Enterprises, Inc., 2021 WL 6197091, *1 (N.D. Fla. 2021);NetChoice, LLC v. Moody, 546 F.Supp.3d 1082, 1085 (N.D. Fla. 2021);Wilson v. Harrell, No. What Is 'Specific Performance' as a Legal Remedy? - Findlaw Remedies arefactually consistentwhen they logically can coexist on the same facts. Remedies arefactually inconsistentwhen one remedy implies negation of the underlying facts necessary for the other., When remedies are factually consistent, the mere election or choice to pursue one of such remedies does not operate as a waiver of the right to pursue the other remedies. Where remedies are factually consistent, only a full satisfaction of the right asserted will estop the plaintiff from pursuing her other consistent remedies.. 2 Defenses to Claim for Temporary Injunction (1) Fla. R. Civ. Third District: City of Miami Beach v. Clevelander Ocean, L.P., 338 So.3d 16, 21-22 (Fla. 3d DCA March 2, 2022);Namon v. Elder, 331 So.3d 835, 837-38 (Fla. 3d DCA 2021); AmeriGas Propane, Inc. v. Sanchez, 335 So.3d 1253, 1257 (Fla. 3d DCA 2021); GFA Intl, Inc. v. Trillas, 327 So.3d 872, 876 (Fla. 3d DCA 2021). The rule in Florida is well established that in a suit for specific performance of a contract for the sale of realty the plaintiff must do more than prove his case by a preponderance of the evidence; he must prove his case by competent and satisfactory proof which must be clear, definite, and certain. (13) A plaintiff with unclean hands may not obtain an injunction. Expect Cleveland's defense to be better in 2021 than it was a year ago. (14) No temporary injunction shall be entered unless a bond is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined. Fla.R.Civ.P. 2d 276, 278 (Fla. 3d DCA 1998)(same). Thus, the court may deny this remedy even when the terms of the contract are unambiguous, and the remedy is available. at (954) 440-3993 immediately to protect your rights. Sweeney Law, P.A. Under Florida law, forcing that buyer to perform can only be done by a court if there is no other adequate remedy at law. If the judge tries to order specific performance and the buyer can demonstrate that other remedies were available (say, a cash payment), then that trial court judge will be reversed on appeal (unless, of course, the contact states the parties may seek specific performance). Part 226 (Regulation Z) Liable Parties Creditor (generally the original lender) Assignee, if violation "apparent on face" of documents hWnF}WCdxMucuP+L*w:EEc ;3gg\K6l*. Personal Jurisdiction and Florida Courts Two-Prong Analysis, Yes, Lawsuits are an Inconvenience, but this does NOT Mean You get Inconvenience Damages, Evidentiary Hearing Warranted before Compelling Non-Signatories to Arbitration, Mutual Mistake or Unilateral Mistake in Contract, Employees Premise Liability Claim Barred by Disclaimer / Release in Employment Agreement, Comparative Fault Applies when Substance of the Action is Sounded in Negligence, Work Product Document and Withholding of Documents Based on Doctrine, Nature of Disclosure under Floridas Public Whistleblower Act, Declaratory Relief in Insurance Coverage Dispute, Statute of Limitations Accrual for Breach of Contract, Enforce Settlement Agreement OR Breach of Settlement Agreement, Objecting and/or Refusing to Participate in Employers Activity in Violation of a Law, Rule, or Regulation under Floridas Whistleblower Act, Quick Note: Obtaining a Default Final Judgment, Appealing a Protective Order that Precludes You from Deposing Material Witness, Tortious Interference with Business Relationship and Two Defense Privileges, Possible or Speculative Events do Not Give Rise to Fraudulent Nondisclosure, Prevailing Party in Civil Action Entitled to Recover Costs, Properly Exercising the Right of First Refusal, Reasonable Attorneys Fees Expert when Attorneys Fees are the Damages, Prejudgment Interest for Economic Damages is Predicated on the Loss Theory, Take Advantage of Video Conference Consultations with an Attorney. You know what happened. It is a remedy based on the concept of fairness. 32. Breach of Third-Party Beneficiary Contract, Breach: 05. Fla 2011), Mora v. Karr, 697 So.2d 887 (Fla. 4th DCA 1997), Williams v. Victim Justice, P.C., 198 So.3d 822, 826 (Fla. 2d DCA 2016), Florida High School Activities Assn v. Mander, Forrest v. Citi Residential Lending, Inc., 73 So.3d 269, 279 (Fla. 2d DCA 2011), * Fla. R. Civ. There was no evidence to support that either of the principals made a binding commitment (or any commitment, for that matter) to give or lend the money to the buyer to close on the land. 2023 Defense & Special Teams Best Ball Rankings | FantasyPros Tom Jones sued for specific performance. 1. A Q&A guide to common defenses to contract claims under Florida common law. [The buyer] argues that its principals personal resources are sufficient to show the company had a reasonable certainty of being able to complete the purchase, but this falls short of the binding commitment the law requires. In some instances, that party would rather have the court force the other party to comply with the terms of the agreement. As a federal judge from Pensacola explained in a 1994 case, Metric Systems Corp. v. McDonnell Douglas Corp., impossibility of performance is a "term of art" that "requires far more than a belief, or even proof, that the other party is 'impossible' to work with.". Arbitrability of a Dispute Does a Judge or Arbitrator Decide? Co., 949 So.2d 1066, 1070, n.3 (Fla. 2d DCA 2007)(emphasis added); see also FHR TB, LLC v. TB Isle Resort, LP., 865 F.Supp.2d 1172, 1192(S.D. See 1. Yet, even when the buyer is in possession, said possession alone will not be enough to enforce specific performance. Specific Performance: Overview. Castigliano v. O'Connor, 911 So.2d 145, 148 (Fla. 3d DCA 2005) (internal citations omitted). Officers Union Natl Exec. Please note that we have no control over how frequently the experts update their rankings. Fla. 2003)(Specific performance is a form of injunctive relief). Breach Implied Covenant of Good Faith & Fair Dealing, Breach: 10. In other words, they were not mutually exclusive remedies; rather, they were factually consistent. We disagree. That same judge also said a party raising impossibility as a defense . Florida Courts have consistently held that, " despite the non-performing party's asserted defense, Florida law provides the performing party with possible counterarguments to the statute of frauds. Specific Performance: Equitable Remedy to Enforce Affirmative There must also be other pertinent factors besides the buyer merely possessing the subject property. Specific performance is a type of equitable remedy available in a breach of contract action. It can be quite complex, and its important you reach out to a knowledgeable and experienced Florida business and corporate attorney who can help. It also covers procedural and equitable defenses specific to breach of contract. 55 Broad Street Can Writing on a Check Create a New Contract. D. Excuse of performance. The trial court ruled in favor of the seller holding that the buyer failed to prove it was ready, willing, and able to perform (close) under the contract because there was no evidence that the buyer had sufficient funds to close. But no defense is one-size-fits-all: each is contract- and fact-specific. Breach of Implied in Law Contract, Breach: 07. However, litigating a demand for specific performance is not only expensive in terms of time and money for all parties, but it also carries with it all sorts of indirect costs as well: the land cannot be sold, the earnest money deposit is frozen, until the case is finally determined. 9. To establish a prima facie claim forspecificperformanceof a contract or for damages for breach of a contract, Florida law requires the plaintiff to show it was ready, willing, and able to perform the contract. If a legal remedy will put the injured party in the position he or she would have enjoyed had the contract been fully performed, then the court will use that option instead. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions. When a Commercial Contract Doesn't Have a Force Majeure Clause: Common With a Dead Body, Tortious Interference: 4. This is always one of the first defenses you look for in every case. 452, 465 (Fla. 2. Subscribe to The Florida Litigation Guide To Access Everything! v. Pearson, 42 Fla. L. Weekly D2277d (Fla. 4th DCA 2017) (internal citations omitted). Additionally, that seller better be ready, willing, and able to do his part of the agreement if he or she is asking the court to make the buyer specifically perform their end of the bargain. Email: [email protected], Phone: (954) 361-4720 Email: [email protected]. By submitting this form I acknowledge that contacting the Law Office of Clifford J. This Q&A covers defenses to contract formation, performance, and damages. It is important to keep in mind that specific performance is discretionary with the courts. 3 Types of Foreclosure DefensesIn Florida, This offer is subject to the buyer obtaining rezoning within 6 months from current zoning to R2 Multifamily. There is a specific performance of a contract. 2020), a buyer entered into a land sale contract with a seller. Co. v. Greenspun, 330 So. "Florida courts do not limit the defense to specific categories of facts. NFL's top nine defenses in 2021: Rams and Bucs reign supreme, but The property owner and buyer could not negate this irrevocable option by simply terminating the purchase and sale contract only to enter a new agreement. 18th Floor Fla. June 30, 2021); Messina v. City of Fort Lauderdale, 546 F.Supp.3d 1227, 1236-37 (S.D. Avery v. Marine Bank & Trust Co., 216 So.2d 251 (Fla. 2d DCA 1968). There are three types of claims that a laches defense usually apply to: specific performance, contract rescission, and contract reformation. The deal didnt close. Fla. 2021); Murdock v. Am. Specific performance requires you to show that monetary damages are inadequate to compensate your claim. The Eleventh Circuit Court of Appeals affirmed. San Diego, CA 92108, 101 NE Third Avenue This seems like a step backward for the Saints defense, which was one of four units to finish in the top five in yards (fourth), points (fifth), and DVOA (second) last season. Courts sometimes expressly include a clear legal right to the relief sought as an element of a claim for temporary injunction. Election of Remedies Doctrine and Claims for Specific Performance and Its true, that most claims that cannot be negotiated or settled end up in courtrooms where dollars and cents are awarded by a judge or jury; however, there are times when money just wont get the injured party justice. All Breach Of Contract Defences (Affirmative & Other Contract Law Defenses) hbbd``b`@ H0k _$ { ( According to the applicable case law, the statute of frauds cannot be used as a defense when an oral agreement has been . (5) [P]laintiff must demonstrate likelihood of success on the merits as to asserted affirmative defenses as well aselements of plaintiffs prima facie case. See, e.g., Bradley v. Health Coalition, Inc., 687 So.2d 329, 333 (Fla. 3d DCA 1997)(emphasis added). Hunt, P.A. For reference, there are certain subjects where specific performance comes up more often, including real estate and the exchange of other unique property. This field is for validation purposes and should be left unchanged. Fifth District:Estate of Fialkoff v. Wilmington Trust, 2023 WL 2616981, *2 (Fla. 5th DCA March 24, 2023);Florida Association of Realtors v. Orange County, Florida, 350 So.3d 115, 123 (Fla. 5th DCA Oct. 27, 2022); Howell v. Orange Lake Country Club, Inc., 303 So. endstream endobj startxref The plaintiff sued the property owner for breach of contract for monetary damages and for specific performance (to force the property owner to sell the property to it based on its right of first refusal and prevent the sale to the buyer). Under Florida law, forcing that buyer to perform can only be done by a court if there is no other adequate remedy at law. If the judge tries to order specific performance and the buyer can establish that other remedies were available (i.e. This Q&A covers defenses to contract formation, performance, and damages. Fla. April 12, 2022); Anderson v. United Airlines, Inc., F.Supp..3d , 2021 WL 6337144, *3 (M.D. New York, NY 10004, 1925 Century Park East Mann v. Thompson, 100 So.2d 634 (Fla. 1stDCA 1958). Understanding Specific Performance | LegalMatch Breach of Contract Defense: Laches | LegalMatch PDF Remedies for Real Property Disputes in Florida - Pronto Marketing ?V]HyVw$L^#v"FxBs}&x#-(gSr -m+`20;Uha9poud,qu8{k*D MT[3-+df*ru!j^/{pgvS;iatQ7IsF&iw_o8kkfB^zG Vn[&L>/`HT *>$c'WI;>._~+~ ~D:Pj[v!Bu`QJ. In Florida, plaintiffs can seek specific performance when awarding monetary compensation would be insufficient. Copyright 2023 The Florida Litigation Guide, 1997 to 2022 - Litigation Guide Publishing, LLC |, * Fla. R. Civ. As I said in last week's Schein Nine, NFL offenses are more creative and dynamic than ever before. Brown v. Dorby, 311 So.2d 159 (Fla. 2d DCA 1075); See Also Lasseter v. Dauer, 211 So.2d 584 (Fla. 3d DCA 1968). vAV/5v;0 With Advantageous Business Relationship, Tortious Interference: 2. A key part of all jury trials in Florida is the judge's instruction to the jury on the law and processes to be applied to make the jury decisions in the case. The property owner refused to honor the right of first refusal and entered into a purchase and sale contract to sell the property to another buyer. Defenses to Breach of Contract Lawsuits in Florida In some situations, the harmed party asks for and receives a court order that forces the other side to go through with the deal, or to specifically perform under the terms of the real estate agreement. Written Contracts - Specific Performance | South Florida Mediation Lawyer During the six-year contingency period, the buyer spent substantial monies to secure permits. With Advantageous Business Relationship, Tortious Interference: 2. P. 1.110(d), and Other Standard Defenses, Breach: 02. The Giants had a defense that seemed to consistently play above the level of expectations in 2020, but it might be time to just give them the credit they deserve this year. Using Florida law as a backdrop, this alert offers some general principles to guide businesses navigating nonperformance in the age of COVID-19. In fact, we think the option was never exercised. Mandatory Injunctions: The Forgotten Art of Putting - The Florida Bar Copyright 2023 The Florida Litigation Guide, 1997 to 2022 - Litigation Guide Publishing, LLC |, Freeman as Trustee of Fiddlesticks Land Trust U/A/D September 25, 1984 v. Berrin, 352 So. Second, the appellate court quickly rejected the property owners cunning effort to cancel the original purchase and sale contract only to enter into a new agreement at a higher price. Consequently, defenses are more stressed than ever before. 2d 1361, 1367 (S.D. Miami, FL 33133, 2221 Camino del Rio South The Eleventh Circuit agreed that the fact that the buyers ultimate principals had the funds is of no moment. When appropriate, the court orders the breaching party to perform its obligations under the terms of the contract, such as delivering the goods or services promised in the agreement. There are a number of defenses, known as affirmative defenses, which in Florida must be claimed in your answer to the lawsuit, or your ability to raise these defenses may be considered waived. 3d 1036, 1039 (Fla. 2d DCA 2021). M&M Realty Partners at Hagen Ranch, supra, at *2 (internal citations omitted). www.sweeneylawpa.com. If the buyer breaches the contract by walking away, the seller can sue for specific performance by asking the court to compel the transfer of the subject property to the buyer. Seaboard Oil Co. v. Donovan, 99 Fla. 1296, 1306 (Fla. 1930)(an injunction against the breach of a contract is a negative decree of specific performance of the agreement, and the general rule is that the power and the duty of a court of equity to grant the former is measured by the same rules and practice as its power and duty to grant the latter relief.); Thompson v. Shell Petroleum Corp., 130 Fla. 652 (1938)(An injunction restraining the breach of a contract is a negative specific enforcement of that contract. List of Possible Affirmative Defenses ("If you don't raise, you might have waived"). (6) Mandatory injunctions [which require that a defendant do some positive act or that acts be undone] are looked upon with disfavor, and the courts seem even more reluctant to issue them than prohibitory ones. Shaw v. Tampa Elec. See Tate v. Jones, 16 Fla. 216 (1877) (explaining that the buyer also paid part of the purchase price);Taylor v. Mathews, 53 Fla. 776 (1907) (clarifying that the buyer also made substantial improvements to the property). The ERA realtor agent is using typical sales pressure points to close the deal. That isnt fair! Florida Rules: Rule 1.610, Fla. R. Civ. 2d 1046, 1047 (Fla. 1995)(including elements listed above); see also Alorda v. Sutton Place Homeowners Assoc, 82 So.3d 1077, 1080 (Fla. 2d DCA 2012)(including clear legal right element); Hatfield v. AutoNation, Inc., 939 So.2d 155, 157 (Fla. 4th DCA 2006)(same); Heslop v. Moore, 716 So. I told her that blackmail wasnt necessary. 3:17cv146J32JRK, 2017 WL 1552034, *1 (M.D. They cannot seek it if enforcing the agreement would be unjust, unfair, or inequitable. Second, the appellate court quickly rejected the property owners cunning effort to cancel the original purchase and sale contract only to enter into a new agreement at a higher price. You can follow David Adelstein on Twitter @DavidAdelstein1. Breach of Joint Venture Agreement, Breach: 04. Bd., No. Can Siblings Force The Sale Of Inherited Property? Under this defense, the person or entity being accused of a breach of contract argues that the other party is not entitled to a remedy under Florida. Co. v. Quinco Electrical, Inc., et al., 2022 WL 1230110, *2 (M.D. To Force the Sale or To Cloud the Title. Group, Inc. v. Giles, 813 So.2d 262, 263 (Fla. 4th DCA 2002). As a former big firm bank attorney he is very sophisticated and a considerable force to deal with. Laches is considered an equitable defense which means that the defendant can only raise a laches defense if the plaintiff is seeking an equitable remedy. This means that the time to bring the cause of action has as a matter of law. (2) Statute of Limitations: 95.11(3)(p), Fla. Stat. Courts of law could issue monetary awards while courts of equity had greater flexibility, like the ability to order someone to complete a specific action or forbid them from doing something. An example of specific performance may play out, as mentioned, in a real estate contract where a seller refuses to close on the transaction. A Q&A guide to common defenses to contract claims under Florida common law. Equitable remedies are those that do not involve the plaintiff receiving a monetary damages award, or financial compensation. Its business, just business, in many of these scenarios. In Florida, not every contract can be granted specific performance, no matter how much the injured party wants to force the other side to go through and comply with the terms of the contract. Suite 1700 When a party breaches an agreement, particularly when dealing with real estate, there is an equitable remedy known as specific performance that requests the trial judge issue an order to affirmatively force the breaching party to perform, i.e., close on the real estate contract. endstream endobj 53 0 obj <> endobj 54 0 obj <> endobj 55 0 obj <>stream Closing date on Friday the 11th of August. It can be granted only when: 1) the plaintiff is clearly entitled to it, 2) there is no adequate remedy at law, and 3) the judge believes that justice requires it. Therefore [the buyers] only hope is to show it had (3) a binding commitment from a financially able third party. ALL RIGHTS RESERVED. When Can You Sue For Breach of Contract in Florida? The trial court granted the motion finding that the property owners failed to comply with the right of first refusal and the right of first refusal remained in effect. She pointed out it was her job to point these things out. They are a potent procedural weapon to defeat or diminish the plaintiff's claim or claims. Before a trial court can apply the election of remedies doctrine, it must determine whether the remedies are factually consistent. Defenses to a Breach of Contract Claim | Nolo 3d 938, 942 (Fla. 4th DCA 2021). Phone: (954) 361-4720 P. 2 Defenses to Claim for Temporary Injunction (1) Fla. R. Civ. E.g., Cardinal Inv. Brendan A. Sweeney, Esq., of Sweeney Law, P.A., a boutique firm in Fort Lauderdale, Florida, prosecutes and defends real estate litigation matters throughout Florida. (11) Unreasonable delay by a plaintiff in bringing suit may preclude the plaintiff from obtaining an injunction. [oItA;{Ok1uM*y1icS|: v h Recently, she expressed if we cancel, she hopes the Seller will release the Contract. Most defenses to a breach of contract claim are referred to as "affirmative defenses." As a legal matter, this means that the party raising the defense (the person sued for breach of contract) has the burden of proving the defense, if the dispute goes to trial. For sellers, suing for specific performance can mean tying up the buyers funds which can be pressure on a business to rethink its earlier position. Complete Performance. Also, Plaintiff does not come into this suit with clean hands. P. 1.110(d) (pleading affirmative defenses), and other standard defenses. As discussed previously, force majeure clauses may address parties' obligations under such circumstances. 1601, et seq. P. 1.110 (d) (pleading affirmative defenses), and other standard defenses. -1. Answers to questions can be compared across many jurisdictions (see. Statute of limitations bars Plaintiff's claim (s). Eleventh Circuit:Ho v. City of Boynton Beach, 2023 WL 2293517 *2 (11th Cir. A decree of specific performance is an equitable remedy not granted as a matter of right or grace but as a matter of sound judicial discretion governed by legal and equitable principles. Blockchain Technologies and Digital Currencies, Intellectual Property Licensing and Assignments, Privacy Policies and Terms and Conditions, Intellectual Property Rights Clearance for Film and Television Productions, Talent Agency and Artist Management Contracts, Student-Athlete Name, Image & Likeness Rules, Non-Compete and Non-Solicitation Agreements in Employment Law, Sexual Orientation and Gender Identity Discrimination. Monetary damages are a type of legal remedy with its own set ofrequirements. March 1, 2023);Norwegian Cruise Line Holdings Ltd v. State Surgeon General, Florida Department of Health,50 F.4th 1126, 1134-35 (11th Cir. P. 1.610(d). However, courts are not always keen on using their power to compel someone to do something. If rezoning not granted the buyer has the option to purchase as is., Seller would furnish to buyer within 30 days from date of contract a title insurance commitment, Closing would take place within 30 days of rezoning if approved.. For Florida purposes, specific performance pursues the specific enforcement of transferring ownership of the subject property as contracted for in the underlying sales contract. 2d 500, 501 (Fla. 4th DCA 1996). With the Parent-Child Relationship, Unfair Competition Trade Name, Service Mark and Trade Mark Infringement, Wrongful Interference with Testamentary Expectancy. So, the church notified the buyer that the deal would be open until November 13, 1978 because of the zoning problem and then on November 27, 1978, the representatives of Our Savior Lutheran Church returned the earnest money to Tom Jones Enterprises and considered the deal to be over. A temporary injunction will serve the public interest. 4th Floor, Coral Gables ", "I had the pleasure of hiring Brendan for a very difficult case. monetary damages), then that trial court judge will be reversed on appeal unless specific performance is an express remedy granted in the purchase contract. If the seller feigned his or her ownership and never actually held title to the property, then they would not have title to convey through the buyers action for specific performance. Supreme Court: Fla. Dept of Health v. Florigrown, LLC, 317 So.3d 1101, 1110 (Fla. 2021); Gainesville Women Care, LLC v. State of Fla. 210 So.3d 1243, 1258 (Fla. 2017); Liberty Counsel v. Fla. Bar Bd. 1280674CIV, 2015 WL 58629, *11 (S.D. Plaintiff bears the burden of establishing there is a clear legal right to the ultimate relief sought and a substantial likelihood of success on the merits. Id. It also covers procedural and equitable defenses specific to breach of contract. Instead, they may try to negotiate damages to get out of the contract theyve signed and move forward. Waiver of Breach; Specific Performance The waiver of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any other breach. E.g., Florida High School Activities Assn v. Mander, 932 So.2d 314, 316 (Fla. 2d DCA 2006) (citing cases); see also Forrest v. Citi Residential Lending, Inc., 73 So.3d 269, 279 (Fla. 2d DCA 2011). We live in Pennsylvania. First, the appellate court held that the plaintiffs remedies seeking breach of contract and specific performance were factually consistent since they were based on the same underlying factual transaction. A party may not obtain judgment for two remedies that are factually inconsistent. The Case of Our Savior Lutheran Church v. Tom Jones Enterprises, Inc. Heres an example of specific performance litigation in action here in Florida. Rescission - Florida Litigation Guide Brendan is a top tier, first class lawyer, second to none. Though not entirely impossible. Today, all those have merged, and the court can make a decision on whether to issue a monetary judgment or issue equitable relief. All rights reserved. [The buyer] argues that it was ready, willing, and able to perform under the contract, first, because [the ultimate principals of the members of the buyer limited liability company] could command credit from a bank in excess of $5 million and, second, because [the principals] each had over $5 million in cash. PDF List of Affirmative Defenses and Counterclaims - Miami Valley Fair The trial court denied this motion finding that the plaintiff already made an election of remedies to recover monetary damages and that the property owners original purchase and sale contract with the buyer was not longer effective due to the property owner cancelling the contract.