Judge Talwani on Thursday adopted Magistrate Judge Cabell 2019s Report and Recommendation that Canterbury 2019s motion for summary judgment be denied. Canterbury had moved for summary judgment on Chatham 2019s copyright, breach of contract, and breach of the covenant of good faith and fair dealing, as well as on the availability of specific performance (effectively, forcing transfer of the property to the Chathams) as a measure of damages. Judge Cabell for a variety of reasons had earlier recommended denial of all elements of Canterbury 2019s motion for the reasons laid out here. Canterbury subsequently switched counsel, and new counsel objected to Judge Cabell 2019s recommendation. Judge Talwani, however, rejected Canterbury 2019s objections. She first determined that Canterbury had not raised a specific objection to the recommendation on the copyright claim be denied, and accordingly adopted Judge Cabell 2019s recommendation that Canterbury 2019s attempt to scrap the copyright claim be denied. Judge Talwani further found that a reasonable jury could determine that the purchase and sales agreement had been extended as a result of Canterbury 2019s representations that it continued to operate in accordance with the agreement following the putative termination, and subsequently threatening to terminate, and ultimately unilaterally terminating the agreement when the Chathams refused to pay additional monies not called for by the agreement. She determined that Canterbury 2019s argument regarding specific performance 2013 that it was unavailable because the Chathams had never proffered payment 2013 was waived for failure to have raised it before. She further noted that, even if the argument hadn 2019t been waived, Canterbury could not object to any perceived failure of Chatham to proffer payment because a condition of closing was that Canterbury would have a certificate of occupancy, which Canterbury undisputably did not have a certificate of occupancy, rendering any failure to tender the purchase price moot. Judge Talwani finally noted that Canterbury had not disputed that a failure to attempt, in good faith, to construct the house in the time frame set forth by the agreement could result in a breach of duty of good faith and fair dealings. Accordingly, the report and recommendation of Judge Cabell was upheld in its entirety.
I represent the Chathams, along with Nate Harris and John Anastasi of my firm, Lando & Anastasi, along with Paul Mordarski and Jordan Carroll of Morrissey, Hawkins & Lynch. Needless to say, we are very happy with this decision, and look forward to trial.
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