Case: 20-1687 Document: 33 Page: 1 Filed: 08/18/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
COASTAL PARK LLC, MEYER LANDAU,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2020-1687
______________________
Appeal from the United States Court of Federal Claims
in No. 1:17-cv-00422-DAT, Judge David A. Tapp.
______________________
Decided: August 18, 2021
______________________
G. ALEXANDER NOVAK, Novak, Juhase & Stern, LLP,
Cedarhurst, NY, for plaintiffs-appellants.
STEPHEN CARL TOSINI, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for defendant-appellee. Also represented by
DEBORAH ANN BYNUM, JENNIFER B. DICKEY, ROBERT
EDWARD KIRSCHMAN, JR.
______________________
Case: 20-1687 Document: 33 Page: 2 Filed: 08/18/2021
2 COASTAL PARK LLC v. US
Before PROST *, BRYSON, and REYNA, Circuit Judges.
PROST, Circuit Judge.
Appellants Coastal Park LLC and Meyer Landau (col-
lectively, “Coastal Park”) filed this suit in the Court of Fed-
eral Claims seeking return of a $310,000 deposit paid
under Coastal Park’s agreement to purchase a former U.S.
Coast Guard housing complex in Elizabeth City, North
Carolina. The complex included various housing units as
well as “several basketball goals, a tennis court, a chil-
dren’s playground, [and] a large gazebo.” J.A. 30. The gov-
ernment kept Coastal Park’s deposit upon concluding that
Coastal Park had defaulted on the transaction. The Court
of Federal Claims ruled that Coastal Park was not entitled
to return of the deposit. Coastal Park LLC v. United States,
147 Fed. Cl. 179, 185 (2020). We affirm.
BACKGROUND
The U.S. General Services Administration (“GSA”) ac-
cepted Mr. Landau’s $3.1 million bid in an auction of the
subject property on September 8, 2016. J.A. 58. The re-
sulting contract 1 required Coastal Park to deposit $100,000
with its opening bid, as well as a further deposit that would
bring the deposited funds to 10% of the purchase price.
J.A. 41, 45. Coastal Park made both deposits, together
$310,000. The remaining balance would come due on the
* Circuit Judge Sharon Prost vacated the position of
Chief Judge on May 21, 2021.
1 The invitation for bids (“IFB”) to which Coastal
Park responded provides that “[t]he IFB and the bid, when
accepted by the Government shall constitute an agreement
for sale . . . between the high bidder . . . and the Govern-
ment.” J.A. 36. This agreement “shall constitute the whole
contract to be succeeded only by the formal instrument(s)
of transfer, unless modified in writing and signed by both
parties.” J.A. 36.
Case: 20-1687 Document: 33 Page: 3 Filed: 08/18/2021
COASTAL PARK LLC v. US 3
“closing date,” October 23, 2016. J.A. 39. The contract
specified an “[a]ll cash, as is” transaction. J.A. 28. It also
stated that “[t]he failure of any bidder to inspect, or to be
fully informed as to the condition of all or any portion of the
Property, will not constitute grounds for any claim or de-
mand for adjustment or withdrawal of a bid after the auc-
tion.” J.A. 36.
On October 8, 2016, Hurricane Matthew made landfall
in South Carolina and then traveled north along the coast.
Coastal Park, 147 Fed. Cl. at 182; JA 696–97, 703. On Oc-
tober 14, Coastal Park sought an extension of the closing
date, citing hurricane-related delays in surveying, ap-
praisal, and inspection work. J.A. 674. And on October 21,
GSA granted an extension to October 30 based on Coastal
Park’s extension request regarding “the delays of business
activities in the eastern North Carolina area caused by
Hurricane Matthew,” and also offered a further extension
to November 14 that was conditioned on an additional 10%
deposit. J.A. 69; see Coastal Park, 147 Fed. Cl. at 182. Alt-
hough Coastal Park didn’t make the extra deposit, GSA
nonetheless on October 28 granted an additional extension
to October 31 at Coastal Park’s request. Coastal Park,
147 Fed. Cl. at 182. And on October 31, GSA granted a
further extension to November 7, again due to “delay of
business activities caused by Hurricane Matthew” and
without requiring a further deposit. J.A. 71; see Coastal
Park, 147 Fed. Cl. at 182.
Additionally, GSA noted that this extension would
“also afford [Coastal Park] the opportunity to view and in-
spect the property.” J.A. 71. Coastal Park subsequently
hired two inspections firms to assess any damage caused
by the hurricane and forwarded the resulting reports to
GSA on November 6. Coastal Park, 147 Fed. Cl. at 182.
The reports declined to attribute any damage to the hurri-
cane or quantify any damage occurring after the ac-
ceptance of the bid. Id.; see J.A. 88 (“Condition prior to this
date is unknown.”); J.A. 91 (“[D]etermining when the
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4 COASTAL PARK LLC v. US
damage occurred or the extent of damage is beyond the
scope of the inspection.”).
On November 7, GSA contacted Coastal Park, noting
that GSA had received neither the final balance nor the
10% deposit required for the previously discussed exten-
sion to November 14. J.A. 111–12; Coastal Park, 147 Fed.
Cl. at 182. GSA noted further that, although it had re-
ceived the two inspection reports, neither one included a
“monetary assessment” of the damage as requested.
J.A. 111. GSA therefore explained that, because it “ha[d]
not yet received the requested information and balance
due,” it was putting Coastal Park “on notice to cure” and
that “otherwise a finding of default of the contract will be
determined.” J.A. 111; see Coastal Park, 147 Fed. Cl.
at 182. GSA gave Coastal Park until 11:00 a.m. on Novem-
ber 9 to forward the outstanding balance and indicated
that failure to do so would “result in the forfeiture of the
$310,000.00 bid deposit per the [contract].” J.A. 111; see
Coastal Park, 147 Fed. Cl. at 182.
Coastal Park responded through counsel on Novem-
ber 8 that it “rejected” the notice to cure and demanded
that GSA “tell[] us what it wants ‘monetized.’” J.A. 129; see
Coastal Park, 147 Fed. Cl. at 182. When Coastal Park did
not forward the funds due on November 9, GSA declared
Coastal Park in default the next day. J.A. 109–10. GSA
sold the property to another bidder on December 15.
Coastal Park, 147 Fed. Cl. at 182.
Coastal Park sued in the Court of Federal Claims. The
court dismissed some of Coastal Park’s claims—none of
which are raised on appeal—leaving only Coastal Park’s
claim for the deposited $310,000. The parties cross-moved
for summary judgment. The court denied Coastal Park’s
motion and granted the government’s. Id. at 185. This ap-
peal followed. We have jurisdiction under 28 U.S.C.
§ 1295(a)(3).
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COASTAL PARK LLC v. US 5
DISCUSSION
I
We review the Court of Federal Claims’ grant of sum-
mary judgment and its contract interpretation de novo.
Shaw v. United States, 900 F.3d 1379, 1381 (Fed. Cir.
2018). “Summary judgment is appropriate when there is
no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.” Id. at 1382 (quot-
ing Nw. Title Agency v. United States, 855 F.3d 1344, 1347
(Fed. Cir. 2017)). “Contract interpretation begins with the
language of the written agreement.” Coast Fed. Bank, FSB
v. United States, 323 F.3d 1035, 1038 (Fed. Cir. 2003) (en
banc). “When the contractual language is unambiguous on
its face, our inquiry ends and the plain language of the
[a]greement controls.” Id. at 1040–41. That is precisely
the situation here.
First, the balance was due on the “closing date,” as
noted above. J.A. 39; see Coastal Park, 147 Fed. Cl.
at 181, 184. Second, the government was entitled to retain
the deposit as a remedy for default:
In the event of . . . any default by the Purchaser in
the performance of the contract . . . or . . . failure by
the Purchaser to consummate the transaction, the
Purchaser agrees that any Earnest Money and all
deposits paid to the Government in any acceptable
form . . . are subject to forfeit by the Purchaser to
the Government at the option of the Government
as damages for breach of contract.
J.A. 37–38. 2
2 “Earnest Money” was defined as “the Bidder’s de-
posit of money demonstrating the Purchaser’s good faith
offer to the Government to fully execute and comply with
all terms, conditions, covenants and agreements contained
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6 COASTAL PARK LLC v. US
Third, the contract states that “[t]he Government re-
serves the right to extend the closing date for a reasonable
amount of time.” J.A. 39. And, in a section titled “Delayed
Closing,” the contract provides:
Except for delayed closing caused solely by the Gov-
ernment or force[] majeure events, any change to
the closing date established in Section 15 [i.e., Oc-
tober 23, 2016] is subject to written approval by the
Government. The Government reserves the right
to refuse a Purchaser’s request for extension of
closing. . . . The Government may impose addi-
tional terms and conditions to grant an extension.
J.A. 39–40.
Coastal Park did not “consummate the transaction,”
J.A. 37, by the October 23 closing date. Nor did it do so by
November 7, the last extension granted by GSA. Accord-
ingly, GSA declared Coastal Park in default and Coastal
Park “forfeit[ed]” its earnest-money deposits, J.A. 37. As
the Court of Federal Claims explained, “[p]ayment was due
on the Closing Date, and although this date was modified
several times, failure to tender payment in full amounted
to a default.” Coastal Park, 147 Fed. Cl. at 184 (internal
quotation marks omitted).
II
Coastal Park’s arguments to the contrary are unper-
suasive. First, Coastal Park takes issue with the
in any contract resulting from the Government’s ac-
ceptance of the Bidder’s offered bid price.” J.A. 35. “Once
a bid is accepted by the Government for contract,” the def-
inition continues, “all prior deposits made by the Purchaser
to register for the sale . . . become Earnest Money to the
benefit, custody, accountability and control of the Govern-
ment.” J.A. 35.
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COASTAL PARK LLC v. US 7
conclusion that time was of the essence. Appellant’s Br.
10–16. “When a contract contains fixed dates for perfor-
mance,” the Court of Federal Claims explained, “failure to
perform within those deadlines is a condition of default.”
Coastal Park, 147 Fed. Cl. at 183 (citing DeVito v. United
States, 413 F.2d 1147, 1154 (Ct. Cl. 1969); Pinewood Realty
Ltd. P’ship v. United States, 617 F.2d 211 (Ct. Cl. 1980)).
As Coastal Park admits, this proposition is grounded in the
holding of DeVito that “[t]ime is of the essence in any con-
tract containing fixed dates for performance,” 413 F.2d
1147; see also Pinewood, 617 F.2d at 103 (reiterating same
in real-estate context), and this case is binding precedent.
Appellant’s Br. 10–11 n.3 (citing S. Corp. v. United States,
690 F.2d 1368, 1369 (Fed. Cir. 1982) (en banc). Nonethe-
less, Coastal Park suggests that general principles of real-
estate contract law, and especially those of North Carolina,
suggest revisiting this federal rule. Appellant’s Br. 10–16.
But in our view, DeVito and Pinewood control in the context
of this case, and as a panel we are not at liberty to overturn
or ignore them.
Coastal Park also argues that, rather than declaring it
in default, GSA should have instead assessed $1,000 per
day in liquidated damages. Those liquidated damages,
however, are only contemplated if the government grants
an extension. J.A. 39. And the contract leaves the grant-
ing of any extension, as well as whether to pursue that rem-
edy if so, to the government’s discretion. J.A. 39 (“The
Government reserves the right to refuse a Purchaser’s re-
quest for extension of closing. However, if the Government
grants an extension, the Purchaser may be required to pay
. . . a liquidated damages assessment of $1,000.00 per day
. . . .”). Moreover, as already noted, the contract provides
also that “any Earnest Money and all deposits . . . are sub-
ject to forfeit . . . at the option of the Government as dam-
ages for breach of contract.” J.A. 37–38. Here, the Court
of Federal Claims found that “GSA had no confidence in
Coastal’s ability to consummate the transaction should
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8 COASTAL PARK LLC v. US
another extension be granted,” and that “the permissive
language in [the contract] provisions provides . . . GSA with
a choice of remedies if Coastal failed to consummate the
sale by November 9, 2016, the final closing date.” Coastal
Park, 147 Fed. Cl. at 185.
Last, Coastal Park makes several arguments premised
on an alleged oral agreement to a 90-day extension, pur-
portedly entered on September 23, 2016. E.g., Appellant’s
Br. 8. First, the government notes that this allegation was
raised for the first time on appeal, Appellee’s Br. 18–21,
and Coastal Park has not disputed that. Coastal Park’s
arguments based on this purported oral agreement are
therefore forfeited. Coastal Park ought to have raised this
allegation below; it is not for us to evaluate in the first in-
stance. At any rate, the contract expressly states that “any
change to the closing date . . . is subject to written approval
by the Government,” J.A. 39 (emphasis added), and it ex-
pressly disclaims oral representations being part of the
contract, J.A. 36, so a merely oral agreement could not
have sufficed.
CONCLUSION
We have considered Coastal Park’s remaining argu-
ments but find them unpersuasive. We therefore affirm
the judgment in the government’s favor.
AFFIRMED