ELDER et al v. D R HORTON INC

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
JOSEPH S. ELDER and
BARBARA U. ELDER,
Plaintiffs,
v. 	Case No. 1:25cv357-RH-HTC
D.R. HORTON, INC.,
Defendant.
_______________________/
REPORT AND RECOMMENDATION
Plaintiffs Joseph and Barbara Elder (the “Elders”), proceeding pro se, have
filed an amended complaint against Defendant D.R. Horton, Inc., alleging claims
related to their purchase of a new construction home in Gainesville, Florida. Doc.
13. 	D.R. Horton has moved to dismiss five of the seven counts in the amended
complaint, arguing: (1) the counts alleging a breach of contract and violations of the
Interstate Land Sales Full Disclosure Act (“ILSA”) fail to state a claim; and (2) the
count for declaratory relief is duplicative of the other counts. 	Doc. 16. 	After
reviewing the amended complaint, the motion, the Elders’ response (Doc. 18), and
the relevant law, the undersigned concludes the motion should be granted in part and
denied in part. 	Specifically, the breach of contract, ILSA, and declaratory relief
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claims in Counts I, III, IV, and VII should be DISMISSED, but the ILSA claim in
Count II should be allowed to proceed for further factual development.
I. 	Background1
On April 5, 2024, the Elders signed a contract (the “Purchase Agreement”)
with D.R. Horton to purchase a parcel of land (the “Property”) in Gainesville. 	At
the time, D.R. Horton was building a home on the Property.2 Doc. 13, ¶ 17. Under
§ 20(b) 	of the 	Purchase 	Agreement, D.R. 	Horton 	was 	required 	to 	complete
construction of the home within two years. See Doc. 13-1 (the Purchase Agreement).
The claims in this case revolve around the Property’s stormwater drainage
system. In June 2019, the St. Johns River Water Management District (“SJRWMD”)
issued an Environmental Resource Permit (the “ERP”) for the development that
included the Property. 	Doc. 13, ¶ 32. 	The ERP required the stormwater drainage
system for the development to be constructed in accordance with plans the
SJRWMD received in May 2019. 	Id., ¶ 35. 	The Elders maintain the ERP plans
required an “uninterrupted earthen berm” at the rear of the Property, and rear to front
lot grading that would route stormwater from the back yard to front yard, where it
would enter the storm sewer network. Id., ¶¶ 44, 60-61, 88.
1 The facts are taken from the Elders’ amended complaint (Doc. 13) and are accepted as true for
purposes of this Report and Recommendation.
2 The Elders and a sales representative for D.R. Horton signed the Purchase Agreement on April
5, while an assistant secretary for D.R. Horton signed on April 10. Doc. 13-1 at 14.
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However, plans approved by the City of Gainesville (the “City”) show a
stormwater conveyance running along a 15-foot-wide drainage easement at the rear
of the Property, “requiring a breach of the berm.”3 Id., ¶¶ 90, 92. Thus, the Elders
contend there is a conflict between the ERP plans and the City’s plans regarding the
Property’s stormwater drainage system. 	Id., ¶ 87. 	The Elders also assert D.R.
Horton cannot request modification of the ERP plans to make them compatible with
the City’s plans because D.R. Horton is not the permittee for the ERP or the
permittee’s authorized agent. Id., ¶¶ 32-34, 105-08, 184.
As for what stormwater drainage features existed on the Property, the Elders
contend that in 2023, before construction on the development began, a stormwater
conveyance (the “ad-hoc conveyance”) was “routed around a hilly area behind” the
Property. 	Id. ¶¶ 139-40. 	However, D.R. Horton filled and covered the ad-hoc
conveyance before the Elders’ first visit to the development. Id., ¶ 145.
On March 23, 2024, the Elders toured the Property with a sales representative
from D.R. Horton while the home was under construction. Id., ¶ 150. At that time,
the rear 15 feet of the Property “appeared as a natural, heavily forested area” and the
physical condition of the Property matched the ERP plans. 	Id., ¶¶ 144, 151. 	The
3 The Elders knew about the drainage easement before signing the Purchase Agreement because it
is shown on a lot drainage plan (Doc. 13-3) a sales representative emailed to them on March 26,
2024 (Doc. 13, ¶ 154). 	However, they claim they did not know what “type of physical
improvement” would be constructed within the easement and assert they did not learn the City’s
plans showed a stormwater conveyance traversing their backyard until October 2024. Doc. 13, ¶¶
92, 247-50.
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sales representative failed to inform the Elders that the stormwater conveyance
depicted in the City’s plans would be constructed in the forested area. 	Id., ¶ 152.
The representative also emailed the Elders a “lot drainage plan” which “depicted
stormwater flowing from the rear yard to the front yard and showed no stormwater
conveyance at the rear of the Property, which was consistent with the ERP Plans.”
Id., ¶ 154.
On June 7, 2024, during a home inspection, the Elders discovered a shallow
drainage trench (the “restored conveyance”) had been newly excavated in the rear
yard of the Property. 	Id., ¶ 161. The restored conveyance was not depicted on the
ERP plans or the City’s plans and was in the same area as the ad-hoc conveyance
that was previously filled with dirt. Id., ¶ 163. When the Elders met D.R. Horton’s
construction superintendent on June 13, 2024, to create a punch list, they insisted the
damage to the rear yard be repaired; the superintendent wrote “correct swale/re sod”
on the punch list but did not disclose the restored conveyance “was a placeholder for
the unbuilt City Conveyance.” Id., ¶¶ 170-72; Doc. 13-6 (the punch list).
On June 20, 2024, the City issued a certificate of occupancy (“COO”) for the
Property. Doc. 13, ¶ 175. The COO states it “becomes invalid … upon any violation
of the Land Development Code[.]” Doc. 13-2 (the COO). The Elders maintain the
Property did not comply with the Land Development Code when the COO was
issued because D.R. Horton had not built a stormwater conveyance that complied
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with the City’s plans and the Property did not have proper drainage; thus, the Elders
say the COO that D.R. Horton obtained was never valid. Doc. 13, ¶¶ 176, 193-95.
After closing on the Property on June 21, 2024, the Elders notified D.R.
Horton that the restored conveyance “was causing water to pool in the backyard and
preventing [them] from being able to fence or otherwise use their property.” 	Id., ¶
202. 	They also complained the restored conveyance was “a ditch directly in the
middle of [their] backyard and outside the drainage easement.” 	Id., ¶ 203. Before
D.R. Horton took any corrective action regarding “the drainage failure,” “the
Property flooded” on August 5, 2024, “during the passage of the outer bands of
Hurricane Debby through Alachua County.” Id., ¶ 205.
On August 27, 2024, a construction crew sent by D.R. Horton entered the
Elders’ property, removed mature trees, and excavated a trench that extended outside
the 15-foot drainage easement and—contrary to the ERP plans—cut through the
earthen berm. 	Id., ¶¶ 226-30. 	On September 17, 2024, another construction crew
returned and moved the trench to bring it within the 15-foot drainage easement.
However, the move resulted in the trench extending past the Elders’ rear property
line onto adjacent private property. 	Id., ¶¶ 234-37. 	The Elders maintain this
permanent trench does not comply with either the ERP plans or the City’s plans. Id.,
¶ 238.
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Based on the foregoing, the Elders bring seven claims against D.R. Horton.
Count I alleges a breach of contract claim for D.R. Horton’s failure to deliver a
“complete” home as required § 20(b) of the Purchase Agreement. Counts II, III, and
IV allege the Elders’ transaction with D.R. Horton was not exempt from ILSA, and
D.R. Horton violated ILSA by not providing the Elders with a property report. Count
V alleges D.R. Horton fraudulently induced the Elders to enter the Purchase
Agreement. 	Count VI alleges a trespass against D.R. Horton for entering the
Property in August and September of 2024 to construct the permanent trench. And
Count VII is a claim for declaratory relief under 28 U.S.C. § 2201.
II. 	Legal Standard
“To survive a motion to dismiss [for failure to state a claim], a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” 	Id. 	The Court
must liberally construe pro se allegations, Haines v. Kerner, 404 U.S. 519, 520-21
(1972), 	but 	conclusory 	allegations 	and 	legal 	conclusions 	couched 	as 	factual
allegations are not entitled to a presumption of truth. 	Iqbal, 556 U.S. at 681;
Papasan v. Allain, 478 U.S. 265, 286 (1986). 	The Court may also consider the
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exhibits attached to a complaint when ruling on a motion to dismiss. See GSW, Inc.
v. Long Cnty., Ga., 999 F.2d 1508, 1510 (11th Cir. 1993) (“All facts set forth in the
complaint are to be accepted as true and the court limits its consideration to the
pleadings and exhibits attached thereto.”) (citing Fed. R. Civ. P. 10(c)).
III. 	Discussion
D.R. Horton has moved to dismiss Counts I through IV and Count VII of the
amended complaint, arguing Counts I through IV fail to state a claim on which relief
may be granted, and the request for declaratory relief in Count VII is subsumed
within the other counts. Upon consideration, the undersigned finds dismissal of the
claim in Count II is premature, but agrees Counts I, III, and IV fail to state a claim
and the separate claim for declaratory relief in Count VII is duplicative of the other
claims.
A. 	Count I
In Count I, the Elders assert a breach of contract claim against D.R. Horton.
Under Florida law, a breach of contract claim requires the plaintiff to plead and
establish: (1) the existence of a contract; (2) a material breach of that contract; and
(3) damages resulting from the breach. Vega v. T-Mobile USA, Inc., 564 F.3d 1256,
1272 (11th Cir. 2009). “In order to allege a material breach in accordance with the
pleading standards required under the Federal Rules of Civil Procedure, the plaintiff
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must allege which provision of the contract has been breached.” Pierce v. State Farm
Mut. Auto. Ins. Co., 2014 WL 7671718, at *4 (S.D. Fla. Dec. 17, 2014).
The Elders contend D.R. Horton breached § 20(b) of the Agreement by failing
to deliver a “complete” home at closing. Doc. 13, ¶¶ 275-80. Section 20(b) states:
In any and every event, Seller agrees to Complete construction of the
Home within two (2) years after the date that Purchaser executes this
Agreement, subject to extensions for circumstances reasonably beyond
Seller’s control as determined by Florida law (“Completion Date”). For
purposes of this Section 20, “Complete” means that the Home is ready
for occupancy by Purchaser, has all necessary and customary utilities
extended to it, and a Certificate of Occupancy has been issued.
Doc. 13-1 at 10. Thus, under § 20(b), a “complete” home must meet three criteria:
(1) it must be ready for occupancy by the purchaser; (2) it must have all necessary
and customary utilities extended to it; and (3) a certificate of occupancy must have
been issued for it.4 Id.
D.R. Horton argues the breach of contract claim should be dismissed because
there has been no breach.5 Specifically, according to D.R. Horton, it complied with
4 This definition of complete comports with guidelines the Department of Housing and Urban
Development has issued regarding the improved lot exemption to ILSA. 	See Guidelines for
Exemptions Available Under the ILSA, 61 Fed. Reg. 13596-01, 13603, 1996 WL 134613 (Mar.
27, 1996) (“For a building or unit to be considered complete, it must be physically habitable and
usable for the purpose for which it was purchased. A residential structure, for example, must be
ready for occupancy and have all necessary and customary utilities extended to it before it can be
considered complete.”).
5 D.R. Horton also argues the breach claim is premature because it had until two years after the
Elders signed the Purchase Agreement (until April 2026) to “complete” the home. 	The Elders
argue the home should have been “complete” by the June 2024 closing because that is when D.R.
Horton represented the home was complete and, thus, D.R. Horton “cannot later retreat to an
executory window to excuse a nonconforming delivery.” 	Doc. 18 at 15. 	The Court need not
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§ 20(b) by delivering a complete home ready for occupancy, with the necessary and
customary utilities extended to it, and a COO has been issued. Doc. 16 at 6. The
undersigned agrees; the Elders’ allegations fail to state a claim for breach.
The Elders do not dispute that to be “complete” under § 20(b), the following
three prongs must be met: (1) the home must be ready for occupancy, (2) have all
necessary and customary utilities extended to it, and (3) have a COO issued to it.
Doc. 18 at 14. The Elders argue the first prong was not met because the home was
not “habitable” because it “lacked a fully permitted stormwater system at closing.”
A home is considered habitable if it is “reasonably fit for the ordinary or general
purpose intended.” Maronda Homes, Inc. of Fla. v. Lakeview Reserve Homeowners
Ass’n, Inc., 127 So. 3d 1258, 1268 (Fla. 2013) (discussing the implied warranty of
habitability).
The Elders have failed to plead facts that plausibly suggest the Property’s
stormwater drainage system made their home not reasonably fit to serve as a
residence at closing. The Elders took possession of the Property at closing, and they
do not allege they have been unable to live in the home since that date. Instead, they
vaguely allege the restored conveyance caused water to pool in their backyard and
address this argument because, as set forth herein, the Elders have not alleged facts sufficient to
show the home was not complete even at closing.
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claim the Property “flooded” on August 5, 2024, when “the outer bands of Hurricane
Debby” moved through the area. Doc. 13, ¶ 14, 202, 205.
Citing Maronda, the Elders argue a “buyer ‘need not wait until floodwaters
inundate the home’ to seek relief—latent threats to the home as a ‘safe and stable
form of basic shelter’ suffice to breach habitability.” 	Doc. 18 at 17 (quoting
Maronda, 127 So. 3d at 1269-70). However, the Elders do not allege facts showing
any of the issues the Florida Supreme Court addressed in Maronda were present at
their Property. They do not allege they experienced: (1) “flooded driveways [that]
completely impeded normal use”; (2) “the collapse of storm drain runoffs” that
caused a depression and “obstructed normal driveway use”; (3) “standing stagnant
water and flooding in their residential lawns that persisted for days after rain had
ended” in “both the front and back of the homes”; (4) “[s]oil erosion and land
depressions … connected to the water problems. Id. at 1262 (emphasis added).
Simply put, an allegation that some standing water accumulated in the yard of
a Florida home during heavy rain—such as that associated with a hurricane—is not
sufficient to show a home was not fit for its intended purpose.6 Therefore, the Elders
6 Also, the photographs attached to the amended complaint from August 5, 2024, show only water
in the restored conveyance dispersing into a nearby retention pond and some pockets of standing
water in the Elders’ backyard. Doc. 13-11.
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have failed to allege facts showing the Property’s stormwater drainage system was
so dysfunctional as to render their home not ready for occupancy at closing.7
The second requirement for a “complete” home under § 20(b) is that it have
all necessary and customary utilities extended to it. 	Doc. 13-1 at 10. 	The Elders
argue they have alleged a breach of § 20(b) because stormwater drainage is a
“utility” and such a system was absent and non-operative at closing. 	Even if the
necessary and customary utility language in § 20(b) includes a stormwater drainage
system, the Elders indicate the Property did have such a system at closing—the
restored conveyance—albeit not the one they wanted or thought state and local plans
required. 	Accordingly, the Elders’ allegations fail to establish their home did not
have all necessary and customary utilities extended to it.8
The third requirement for a “complete” home under § 20(b) is that “a
Certificate of Occupancy has been issued.” Doc. 13-1 at 10. The Elders admit the
City issued a COO for the Property to D.R. Horton on June 20, 2024, the day before
7 The allegations in the amended complaint focus on the stormwater drainage system’s failure to
comply with the ERP or City’s plans. However, such a failure is not by itself sufficient to show
the home was not ready for occupancy. 	Cf. Goreham v. Martins, 147 N.E. 3d 478, 488 (Mass.
2020) (“The emphasis is on whether the premises are fit for human habitation, not merely on
whether the landlord committed a code violation.”).
8 The Elders also argue Fla. Stat. § 403.0893 makes stormwater management a necessary and
customary utility, but that statute does no such thing. 	Instead, it authorizes counties and
municipalities to create stormwater utilities and charge fees to support the operation of those
utilities. Nothing in it suggests stormwater management is a necessary and customary utility under
§ 20(b), or that D.R. Horton was required to “extend” a stormwater management system to the
home for it to be considered “complete” within the meaning of § 20(b).
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closing. Doc. 13, ¶ 175. And they do not claim the COO has ever been revoked by
the City. 	Nevertheless, the Elders allege: (1) the COO becomes invalid upon any
violation of the Land Development Code; and (2) the Property’s stormwater
drainage system violated the Code. Id., ¶ 277. Thus, the Elders claim the COO was
never valid and D.R. Horton failed to satisfy the third requirement under § 20(b).
However, the undersigned disagrees. By its plain and unambiguous language,
§ 20(b) only requires that a COO be issued; it says nothing about the validity of the
COO. 	See Socas v. Nw. Mut. Life Ins. Co., 829 F. Supp. 2d 1262, 1266 (S.D. Fla.
Nov. 2, 2011) (“[A] court is not at liberty to rewrite or add terms to a written
agreement”); Emergency Assocs. of Tampa, P.A. v. Sassano, 664 So. 2d 1000, 1003
(Fla. 2d DCA 1995) (“[W]hen the terms of a voluntary contract are clear and
unambiguous, … the contracting parties are bound by those terms, and a court is
powerless to rewrite the contract to make it more reasonable or advantageous for one
of the contracting parties.”). 	Indeed, none of the other parts of the Purchase
Agreement that mention a COO reference its validity. Instead, the concern is with
its issuance. 	See Doc. 13-1 at 6 (“Seller’s obligation to complete any Punch List
items that it has agreed to complete shall survive Closing and not delay Closing if a
certificate of occupancy has been issued”); id. at 9 (“At Closing, Seller shall deliver
to Purchaser the Deed for the Property, a certificate of occupancy for the Home
issued by the applicable governmental authority, and, if applicable, a certificate of
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final approval by the FHA or VA.”); id. at 10 (“Purchaser acknowledges that an
actual closing date cannot be determined until final issuance of a Certificate of
Occupancy, full loan approval, and other items.”). Accordingly, the Elders have not
alleged a breach of the third requirement for a complete home. 	Section 20(b)
required the issuance of a COO and one was issued.
In sum, neither the allegations regarding the stormwater drainage system in
the rear of the Property nor the allegations regarding the conflicting ERP and City
plans show the Elders’ home was not “complete” under § 20(b) at closing. Based
on the foregoing, the Elders have failed to state a claim for breach of contract, and
because the Elders have already amended their complaint once, Count I should be
dismissed.9
B. 	Counts II, III, and IV
In Counts II, III, and IV, the Elders allege D.R. Horton violated ILSA by not
providing them the “property report” required by 15 U.S.C. § 1703(a)(1)(B) before
the Purchase Agreement was signed in April 2024. 	Thus, they contend they have
the right to revoke the Purchase Agreement under 15 U.S.C. § 1703(c). However,
9 The breach of contract claim in the original complaint focused on the validity of the COO. Doc.
1 at 29-30. On December 16, 2025, D.R. Horton moved to dismiss the original complaint, claiming
it had satisfied § 20(b) because the COO had been issued and was not considered invalid by the
City. Doc. 10 at 6. In response to that motion, the Elders filed an amended complaint that added
allegations to their breach claim, including asserting their home was not ready for occupancy and
did not have all necessary and customary utilities extended to it. Doc. 13. However, for the reasons
set forth in this Report and Recommendation, the Elders’ allegations still do not show D.R. Horton
failed to deliver a complete home.
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D.R. Horton argues it was not required to provide a property report to the Elders
because the Purchase Agreement was exempt from ILSA’s requirements.
ILSA “is a consumer protection statute that ‘was intended to curb abuses
accompanying interstate land sales.’” 	Stein v. Paradigm Mirasol, LLC, 586 F.3d
849, 853 (11th Cir. 2009) (citation omitted). 	“It requires developers selling or
leasing property to provide the purchaser with a property report before the sales
contract is signed.” 	Id. (citing 15 U.S.C. § 1703(a)(1)(B)). “If the developer fails
to provide a property report, the purchaser generally has the right to revoke the
contract.” 	Id. (citing 15 U.S.C. § 1703(c)). 	However, “[u]nless the method of
disposition is adopted for the purpose of evasion” of ILSA, the statute does not apply
to “the sale or lease of land under a contract obligating the seller or lessor to erect
… a [residential] building thereon within a period of two years.” 	15 U.S.C.
§ 1702(a)(2). This is known as the improved lot exemption.
Here, § 20(b) of the Purchase Agreement indicated D.R. Horton had to erect
a home on the Property within two years. 	While that provision would seem to
qualify the Purchase Agreement for the improved lot exemption, the Elders argue it
does not for three reasons, which are contained in Counts II, III, and IV and
addressed below.
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i. 	Count II - Purpose of Evasion
In Count II, the Elders assert the improved lot exemption does not apply to
the sale of the Property because D.R. Horton used the promise to build in § 20(b) as
a pretext to evade ILSA’s requirements, as D.R. Horton knew or should have known
it could not deliver a “complete” home due to the unresolved defects related to the
stormwater drainage system. 	Doc. 13, ¶¶ 281-86. 	The Elders argue “[u]sing a
knowingly impossible promise to build as the basis for claiming an exemption
constitutes a ‘method of disposition adopted for the purpose of evasion’ under 15
U.S.C. § 1702(a).” Id., ¶ 284.
In the Eleventh Circuit, “a developer seeking an exemption under § 1702(a)(2)
… must produce factual evidence demonstrating that the method of disposition has
a real world objective that manifests a legitimate business purpose.” 	Gentry v.
Harborage Cottages-Stuart, LLLP, 654 F.3d 1247, 1257 (11th Cir. 2011). 	“The
‘legitimate business purpose’ standard asks the party invoking the exemption to
articulate some legitimate business reason for its method of disposition other than
the avoidance of the ILSFDA’s consumer protections.” 	See id. 	at 1257-58
(“Allowing a developer to structure the sale to comply with an exemption while also
requiring a developer to provide evidence that it did so for a legitimate business
purpose is consistent with the consumer protection policies in the ILSFDA.”).
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Because the determination of whether ILSA applies is premised on the
resolution of facts, it is not a determination that can be made on motion to dismiss.10
See McGee v. S-Bay Dev., LLC, 2012 WL 760797, at *8 (M.D. Fla. Mar. 8, 2012)
(stating “the standard articulated by the Eleventh Circuit [in 	Gentry] 	is not
appropriately tested on a motion to dismiss”); see also Mendez v. Land Investors,
Corp., 2013 WL 1193071, at *1 (M.D. Fla. Mar. 22, 2013) (noting the court was
“without sufficient information to determine at [summary judgment] whether or not
either of the exemptions apply” because “Plaintiff makes no allegations that
defendant’s actions lack a legitimate business purpose nor does defendant attempt to
make any showing of legitimacy”). Thus, D.R. Horton’s motion to dismiss Count II
should be denied.
ii. 	Counts III and IV - Illusory Obligation to Complete
In Counts III and IV, the Elders claim D.R. Horton is not entitled to the
improved lot exemption because its obligation to complete the home within two
years under § 20(b) of the Purchase Agreement was illusory. Doc. 13, ¶¶ 287-97.
In Count IV, they allege the obligation was illusory because D.R. Horton knew or
should 	have known delivering 	a complete home was 	a “physical 	and 	legal
impossibility,” as the Property’s stormwater drainage could not be configured to
10 Regardless, D.R. Horton did not specifically address the allegation that it adopted § 20(b) for
the purpose of evading ILSA’s requirements in its motion.
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comply with the plans of all relevant governmental entities. Id., ¶ 294. In Count III,
they allege the obligation was illusory because specific performance was not an
available remedy.
An obligation is illusory when it “appears on its face to be so insubstantial as
to impose no obligation at all on the promisor[.]” 	Johnson Enters. of Jacksonville,
Inc. v. FPL Grp., Inc., 162 F.3d 1290, 1311 (11th Cir. 1998) (citation omitted). In
other words, an obligation is illusory when it permits the promisor to “breach with
impunity.” 	Port Largo Club, Inc. v. Warren, 476 So. 2d 1330, 1333 (Fla. 3d DCA
1985). “Given the context and the ordinary meaning of ‘obligating,’ the § 1702(a)(2)
exemption applies when a contract imposes a legal duty on the developer to perform
his promise to construct the … building within two years.” 	Stein, 586 F.3d at 854.
“A legal duty, contractual or otherwise, is one that the law will require a party to
perform, or to pay for not performing, by bringing to bear public force.” Id. at 855.
Here, even if it was “physically and legally impossible” for D.R. Horton to
deliver a “complete” home as required by § 20(b), that does not mean the Purchase
Agreement did not obligate it to do so.11 The Purchase Agreement does not limit
the Elders’ remedies in the event of a breach of § 20(b). 	See Doc. 13-1 at 10
(“Notwithstanding any provision in this Agreement to the contrary, including but
11 As explained in the discussion of Count I, the undersigned does not find the permitting and
planning discrepancies alleged by the Elders prevented D.R. Horton from delivering a “complete”
home.
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not limited to Section 18(b), nothing herein shall limit Purchaser’s remedies if Seller
defaults under this [§ 20(b)].”). Because the Purchase Agreement contemplated that
the law would require D.R. Horton to satisfy § 20(b) or pay for not satisfying § 20(b),
the obligation to build was not illusory.
Nevertheless, the Elders argue without the remedy of specific performance,
the obligation to build is illusory. 	See Doc. 13, ¶ 288 (alleging the improved lot
exemption “requires a contractual obligation to complete the Home within two years
that is specifically enforceable”). As indicated above, the Purchase Agreement itself
does not preclude the Elders from suing for that remedy. Instead, the Elders allege
specific performance is not available as a practical matter—they claim D.R. Horton
could not be ordered to “complete” the home because: (1) completion requires
resolving the planning defects associated with the Property’s stormwater drainage
system; and (2) resolution of those defects is dependent on the discretionary acts of
third parties such as the SJRWMD and the ERP permittee. Id., ¶ 289.
However, the fact that specific performance may be unavailable as a practical
matter does not make D.R. Horton’s obligation to build illusory, particularly given
D.R. Horton’s potential liability for monetary damages. See Stein, 586 F.3d at 857
(holding remedies under Florida law “would have threatened or inflicted enough
pain on [the builder] for breaching the contract to make the contract one ‘obligating
the seller or lessor to erect such a building thereon within a period of two years’
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within the meaning of § 1702(a)(2)”). 	Indeed, the Eleventh Circuit has noted an
obligation to build would not be illusory even if a seller thwarted the specific
performance remedy by conveying a property to another purchaser, as the initial
purchaser could still recover damages—the seller’s entire profit from the sale. 	See
id. at 856. 	Thus, even if the Elders could not obtain specific performance, D.R.
Horton’s obligation to build a home within two years was not illusory.12 Therefore,
D.R. Horton’s motion to dismiss should be granted as to Counts III and IV.13
C. 	Count VII
In Count VII, the Elders identify four “controversies” for which they seek
relief under the Declaratory Judgment Act, 28 U.S.C. § 2201. D.R. Horton argues
12 In Samara Dev. Corp. v. Marlow, 556 So. 2d 1097, 1101 (Fla. 1990), the Florida Supreme Court
stated, “We believe that without the availability of at least both specific performance and damages
the obligation to complete the construction within two years is illusory.” However, Samara does
not help the Elders for at least two reasons. First, Samara addressed contractual limitations on a
buyer’s remedies, and the Purchase Agreement has none with respect to § 20(b). See Salazar v.
Santa Barbara Townhomes of Homestead, Inc., 309 F. App’x 381, 382 (11th Cir. 2009)
(explaining that a contractual “provision providing for ‘all remedies available at law and in equity
without limitation or restriction’ more than satisfies the standard for obligation set out in Samara”).
Second, the Eleventh Circuit interprets ILSA differently than Samara. See Stein, 586 F.3d at 857
n.5 (“The Florida Supreme Court has interpreted the Disclosure Act differently than we do.
Although we respect its views, we are not bound by Samara’s interpretation even in cases arising
in Florida because it is a federal statute we are interpreting.”).
13 In their response, the Elders suggest Counts III and IV are statutory fraud claims under ILSA.
Doc. 18 at 25 (claiming Count III alleges misrepresentation under § 1703(a)(2)); id. at 27 (claiming
Count IV alleges a violation of § 1703(a)(2)(B) “for material omissions that induced the sale”).
However, that is not what is alleged in the amended complaint and the Elders cannot amend their
complaint through a response to a motion to dismiss. See Huls v. Llabona, 437 F. App’x 830, 832
n.5 (11th Cir. 2011) (noting that an argument raised by plaintiff for first time in response to motion
to dismiss, rather than through an amended complaint, was not properly raised in district court).
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Count VII should be dismissed because these controversies are subsumed by the
Elders’ other claims. The undersigned agrees.
Under the Declaratory Judgment Act, “any court of the United States, upon
the filing of an appropriate pleading, may declare the rights and other legal relations
of any interested party seeking such declaration, whether or not further relief is or
could be sought.” 	28 U.S.C. § 2201(a). 	The Act “only gives the federal courts
competence to make a declaration of rights; it does not impose a duty to do so.”
Ameritas Variable Life Ins. Co. v. Roach, 411 F.3d 1328, 1330 (11th Cir. 2005).
“[A] court should permit a claim for declaratory judgment to proceed where
declaratory relief would (1) ‘serve a useful purpose in clarifying and settling the
legal relations in issue,’ and (2) ‘terminate and afford relief from the uncertainty,
insecurity, and controversy giving rise to the proceeding.’” 	Mt. Hawley Ins. Co. v.
Tactic Sec. Enforcement, Inc., 252 F. Supp. 3d 1307, 1309 (M.D. Fla. May 17, 2017)
(citations omitted).
Here, none of the purported controversies identified by the Elders warrant a
separate claim for a declaratory judgment. The Elders allege the first controversy is
whether the home must be physically habitable to be deemed complete under § 20(b)
of the Purchase Agreement and, thus, to qualify for ILSA’s improved lot exemption.
Doc. 13, ¶ 310. However, that controversy is addressed within the breach of contract
claim, as the Elders allege D.R. Horton breached § 20(b) by not delivering a home
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that was physically habitable. Because the breach of contract claim resolves the first
controversy, an independent declaratory judgment claim is unnecessary. See Bleau
Fontaine Condo. Ass’n Number Three, Inc. v. Indian Harbor Ins. Co., 2019 WL
1932785, at *3 (S.D. Fla. Jan. 10, 2019) (dismissing declaratory judgment claim as
duplicative because “the Plaintiff’s amended complaint alleges the same grounds for
its declaratory-judgment claim as its breach-of-contract claim and the breach-of-
contract claim can adequately and fully resolve the dispute”).
The Elders allege the second and third controversies are: (1) whether
development plans approved by the City of Gainesville can revise stormwater
management plans governed by an ERP without permit modification approval from
the SJRWMD; and (2) whether a non-permittee such as D.R. Horton is precluded
from applying to modify an ERP. Doc. 13, ¶¶ 311-12. These controversies do not
provide an appropriate basis for declaratory relief because they do not seek a
declaration regarding “the rights and other legal relations” of the Elders. 	See
McDougald v. Jenson, 786 F.2d 1465, 1481 (11th Cir. 1986) (noting the objectives
of declaratory relief include “affording one threatened with liability, but otherwise
without a satisfactory remedy, an early adjudication of an actual controversy, and
avoiding multiplicity of actions by affording an adequate and expedient means of
declaring the rights and obligations of litigants in one action rather than several”).
Instead, they are independent questions regarding the interplay between state and
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local planning authorities, and D.R. Horton’s right to request modification of an
ERP. And to the extent these controversies have any bearing on the legal relations
between the Elders and D.R. Horton—for example, whether D.R. Horton delivered
a complete home, whether the representations it made to the Elders were accurate,
and whether the improved lot exemption applies to the Agreement—those questions
would be addressed through the Elders’ breach of contract, ILSA, and fraudulent
inducement claims.
The Elders allege the fourth and final controversy is whether a seller can be
considered “obligated” to build for purposes of ILSA’s improved lot exemption if,
“at the moment of contract execution,” completion is contingent on the SJRWMD
approving a future modification request to an ERP. Doc. 13, ¶ 313. This controversy
is addressed by the ILSA claims in Counts II, III, and IV, which allege, in part, that
the Purchase Agreement is not subject to the improved lot exemption because D.R.
Horton could not resolve the planning conflicts regarding the Property’s stormwater
drainage system. See Doc. 13, ¶ 283 (“Defendant knew or should have known at the
time the Agreement was executed that its promise to deliver a ‘Complete’ Home was
impossible to perform, due to the underlying Planning Defects which Defendant
lacked the legal authority to resolve.”); id., ¶ 289 (“[T]he underlying Planning
Defects made completion dependent on the discretionary acts of third parties not
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under Defendant’s control, including the Permittee, the SJRWMD, and multiple
adjacent private property owners”).
Accordingly, the controversies for which the Elders seek declaratory relief are
addressed through their other claims, and a separate claim for a declaratory judgment
is unnecessary and would serve no useful purpose.14 See ABG 19 LLC v. Westchester
Surplus Lines Ins. Co., 2023 WL 6797060, at *1 (S.D. Fla. Sept. 27, 2023) (“As a
general rule, district courts have broad discretion over requests for declaratory relief
and need not entertain requests that are duplicative or redundant to other claims for
affirmative relief.”). Thus, the Court should dismiss Count VII.
IV. 	Conclusion
Accordingly, it is RECOMMENDED that:
1. 	D.R. Horton’s motion to dismiss (Doc. 16) be GRANTED in part and
DENIED in part.
2. 	Counts I, III, IV, and VII be DISMISSED.
3. 	This case be referred to the undersigned for further proceedings on
Counts II, V, and VI.
14 The Elders appear to concede these controversies would be resolved through their other claims.
See Doc. 13, ¶ 309 (admitting a “declaration on these legal issues is foundational” to their breach
of contract and ILSA claims).
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At Pensacola, Florida, this 24 th day of March, 2026.
/s/ Hope Thai Cannon
HOPE THAI CANNON
UNITED STATES MAGISTRATE JUDGE
NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations must be filed within
fourteen (14) days of the date of the Report and Recommendation. Any different
deadline that may appear on the electronic docket is for the court’s internal use only
and does not control. An objecting party must serve a copy of its objections upon
all other parties. A party who fails to object to the magistrate judge’s findings or
recommendations contained in a report and recommendation waives the right to
challenge on appeal the district court’s order based on the unobjected-to factual and
legal conclusions. See 11th Cir. Rule 3-1.
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