                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 08-13494                ELEVENTH CIRCUIT
                                                            JANUARY 5, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

                D. C. Docket No. 07-01641-CV-ORL-DAB

RICKY HARVEY,
CHRISTINE ANN HARVEY,

                                                          Plaintiffs-Appellees,

                                  versus

LAKE BUENA VISTA RESORT, LLC,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                            (January 5, 2009)


Before CARNES, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
        Lake Buena Vista Resort appeals the summary judgment in favor of Ricky

and Christine Harvey. The district court concluded that the Resort violated the

Interstate Land Sales Full Disclosure Act by failing to provide the Harveys with a

property report and the district court concluded, in the alternative, that the Resort

breached its contract with the Harveys by failing to complete their condominium

within two years. We affirm on the alternative ground.

                                 I. BACKGROUND

        On September 30, 2005, the Harveys executed a contract to purchase a

condominium in Orlando, Florida, from Lake Buena Vista Resort. Several

provisions of the contract stated that the transaction qualified for exemption from

the Interstate Land Sales Act. Paragraph fourteen of the contract required

completion of the unit within two years of execution of the contract except for

events or occurrences that would render timely completion impossible. In August

2007, the Harveys sought rescission of the contract and a refund of their deposits

on the ground that the Resort had violated the Act. The Resort refused to rescind

the contract and delivered to the Harveys a certificate of occupancy on October 4,

2007.

        Eleven days later, the Harveys filed a complaint that alleged the Resort

violated the Act and breached their contract under Florida law. The Harveys



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alleged that the Resort did not provide a property report as required by the Act and

the Resort failed to complete construction of the condominium within two years as

required by the contract.

      The Harveys moved for summary judgment, and the magistrate judge, who

the parties consented to resolve the action, granted the Harveys’ motion. The

magistrate judge concluded that the Resort was not entitled to an exemption from

the Act because the force majeure and presale contingency clauses made the

agreement to build the condominium within two years illusory. The magistrate

judge concluded that the Resort violated the Act by failing to give the Harveys a

property report and the Harveys were entitled to rescind the contract. The

magistrate judge ruled, in the alternative, that the Resort breached its contract with

the Harveys by failing to complete the condominium within two years.

                            II. STANDARD OF REVIEW

      We review a summary judgment de novo and view the evidence in the light

most favorable to the nonmoving party. Twin City Fire Ins. Co. v. Ohio Cas. Ins.

Co., 480 F.3d 1254, 1258 (11th Cir. 2007). Summary judgment should be entered

when there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c).




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                                 III. DISCUSSION

      The Resort challenges the summary judgment on two grounds. First, the

Resort argues that its contract with the Harveys’ was exempt from the Interstate

Land Sales Act. Second, the Resort argues that there are genuine issues of material

fact about whether it breached the contract. We need not address whether the

conduct was governed by the Act because we affirm the decision that the Resort

breached its contract with the Harveys.

      The Resort failed to deliver a certificate of occupancy to the Harveys until

October 4, 2007, five days after the two-year completion period allowed by the

contract. Florida law instructs that a home is not “complete” until a certificate of

occupancy is obtained and the buyer is able to occupy the home. Hollander v. K-

Site 400 Assocs., 630 So. 2d 1153, 1154 (Fla. Dist. Ct. App. 1993). There is no

dispute that the Resort failed to complete the construction within two years.

      The Resort argues that there is a genuine issue of material fact about whether

it was impossible to complete the condominium within two years. The doctrine of

impossibility exists “where the purposes, for which the contract was made, have,

on one side, become impossible to perform.” Crown Ice Mach. Leasing Co. v.

Sam Senter Farms, Inc., 174 So. 2d 614, 617 (Fla. Dist. Ct. App. 1965). “[I]f

knowledge of the facts making performance impossible were available to the



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promisor” before execution of the contract, the defense of impossibility is not

available. Shore Inv. Co. v. Hotel Trinidad, Inc., 29 So. 2d 696, 697 (Fla. 1947).

In other words, a legal impossibility exists only if the supervening event is not

foreseeable. Cook v. Deltona Corp., 753 F.2d 1552, 1558 (11th Cir. 1985).

      The Resort argues that its delays are attributable to circumstances outside its

control and are excused under the force majeure clause, but we disagree. The

Resort blames the delays on the slow processing of a road permit after the 2004

hurricanes and a change in the building code, but these delays were foreseeable.

An affidavit submitted by the Resort establishes that the road permit was issued in

July 2005, but the Resort could have anticipated the delay in road construction

before it entered its contract with the Harveys two months later. See East Coast

Adver., Inc. v. Wiseheart, 862 So. 2d 734, 734–35 (Fla. Dist. Ct. App. 2003). The

record also establishes that the building code was routinely revised every three

years and the updated version was available in July 2004. A delay attributed to

interpretation of the revised code was reasonably forseeable when the Resort

agreed to build the Harveys’ condominium. See American Aviation, Inc. v. Aero-

Flight Serv., Inc., 712 So. 2d 809, 810–11 (Fla. Dist. Ct. App. 1998).

                                IV. CONCLUSION

      We AFFIRM the summary judgment in favor of the Harveys.



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