## Facts

- Buyer and Seller executed an assignment agreement under which Seller assigned rights in two underlying commercial land purchase contracts to Buyer for $14 million.
- Buyer was required to make three earnest-money deposits to an escrow agent on specified dates; Buyer timely paid the first two deposits totaling $200,000.
- A third $200,000 deposit was due February 8, 2005.
- The underlying contracts required delivery of marketable title but included a title-review process: Buyer had 15 days after receiving title evidence to notify Seller of defects, followed by a 10-day curative period.
- The contracts allowed Seller to elect not to cure defects if Seller reasonably believed a defect could not be cured within the curative period; if Seller elected not to cure, Buyer had 10 days to terminate or accept title with defects.
- Seller provided a timely title commitment on January 25, 2005; Buyer timely noticed defects.
- Seller investigated and advised that at least some defects could not be cured within the curative period, triggering Buyer’s 10-day option period.
- Buyer did not pay the third deposit by February 8, 2005 (during the option period) and did not timely terminate.
- Seller issued a default notice, treated Buyer’s nonpayment as a breach, and sought to retain the $200,000 already deposited under a clause awarding deposits to the non-breaching party.
- Buyer sued for return of the $200,000, claiming Seller’s statements about inability to cure amounted to anticipatory breach; the trial court granted summary judgment for Seller.

## Issues

1. Whether Seller’s election not to cure certain title defects within the contractual curative period constituted anticipatory repudiation excusing Buyer’s obligation to make the third earnest-money deposit.
2. Whether Buyer’s failure to make the third deposit by its due date constituted a default entitling Seller to retain the $200,000 already paid.
3. Whether summary judgment for Seller was proper under the contract’s title-defect and deposit-forfeiture provisions.

## Decision

- The appellate court affirmed summary judgment for Seller.
- Seller’s conduct in responding to title defects and electing not to cure items believed incurable within the curative period did not constitute anticipatory breach.
- Buyer’s failure to pay the third deposit by the contractual deadline was a default.
- Under the agreement’s default provision, Seller was entitled to retain the $200,000 in earnest-money deposits already paid.

## Legal Principles

- Anticipatory repudiation requires a clear, absolute, and unequivocal refusal to perform future contractual obligations; conduct consistent with contractual performance mechanisms is insufficient.
- Where a contract expressly permits a seller to elect not to cure title defects believed incurable within a defined curative period, exercising that right is not a repudiation.
- Unless the contract suspends performance, a buyer remains bound to deposit-payment deadlines even while a contractual option period (to terminate or proceed with defects) is running.
- A clause awarding earnest-money deposits to the non-breaching party upon the other party’s default is enforceable when no prior breach by the recipient is shown.

## Conclusion

The court held that Seller’s contract-authorized election not to cure certain title defects within the curative period was not anticipatory repudiation; Buyer’s missed third deposit was a default that triggered forfeiture, allowing Seller to retain the $200,000 previously deposited.


Jones v. Warmack, 967 So. 2d 400 (Fla. 1st DCA 2007)