Full opinion text
ORDER WILLIAM H. STEELE, District Judge. This matter comes before the undersigned on defendant’s Motion for Summary Judgment (doc. 58) and plaintiffs’ Motion for Partial Summary Judgment (doc. 67). These cross-motions have been the subject of extensive briefing, and are now ripe for disposition. Also pending is defendant’s Motion for Leave to Submit Supplemental Evidence (doc. 57). That Motion is granted, and the Affidavit of Paul C. Wesch appended to defendant’s Notice of Supplemental Filing (doc. 69) is accepted and will be considered by the Court in adjudicating the crossmotions for summary judgment. I. General Background. Defendant, Holiday Isle, LLC (“Holiday Isle”), is the developer of a condominium project entitled Holiday Isle, a Condominium (the “Project”), located in Dauphin Island, Alabama. The Offering Statement for the Project reflects that it was to consist of 144 residential units located in a seven-story building, plus numerous amenities such as a three-level parking garage, outdoor and indoor swimming pools and decks, tennis courts, hot tub, sauna, exercise room, community room, and other facilities. (Wesch Aff., at Exh. F.) Construction was contemplated to begin in May 2005 and to conclude by April 2007. (Id.) This dispute relates to five specific condominium units at the Project. The seven plaintiffs (who are all related to each other by blood or marriage) entered into preconstruction purchase agreements with Holiday Isle to purchase such units in early 2005. Despite being repeatedly asked to do so by the developer, none of the plaintiffs ever closed on those units, as a result of which Holiday Isle ultimately drew on letters of credit provided by plaintiffs to take possession of plaintiffs’ security deposits. Plaintiffs now want their deposits back, but defendant has refused to reimburse them. On October 30, 2007, plaintiffs filed a Complaint for Declaratory Judgment and Damages (doc. 1) against Holiday Isle in this District Court. The Complaint identifies the following four causes of action: (a) as Count One, a claim under the Interstate Land Sales Full Disclosure Act, 15 U.S.C. §§ 1701 et seq. (“ILSFDA”), for rescission of the purchase agreements and damages based on, inter alia, Holiday Isle’s failure to include mandatory statutory language in the agreements concerning plaintiffs’ rescission rights; (b) as Count Two, a claim seeking a declaration that, inter alia, Holiday Isle is obligated to refund plaintiffs’ security deposits pursuant to Paragraph 6(B) of the agreements, which required the units to be completed within two years, and Paragraph 11, which identified certain prerequisites to defendant’s ability to draw on the letters of credit; (c) as Count Three, a claim for conversion based on Holiday Isle’s allegedly unlawful drawing on plaintiffs’ letters of credit to possess and control their security deposits; and (d) as Count Four, a claim for declaratory judgment solely on behalf of plaintiff Fitzner that he validly rescinded his offer to purchase a unit at Holiday Isle on June 5, 2007, rendering his purchase agreement of no legal force or effect and necessitating the return of his deposit. Though one would never guess it from the parties’ sprawling summary judgment submissions, the issues on which the outcome of this action hinges are quite discrete. The critical questions are, for purposes of Count One, whether plaintiffs were damaged by Holiday Isle’s omission of mandatory statutory language regarding plaintiffs’ rescission rights and, for purposes of Count Two, what meaning is ascribed to the contractual terms “Unit” and “completed,” and whether plaintiffs were actually in default. It is on those questions that this Order will focus. Count Three appears closely linked to Count Two, and Count Four may be quickly disposed of on independent grounds. II. Summary Judgment Standard. Summary judgment should be granted only if “there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The party seeking summary judgment bears “the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). Once the moving party has satisfied its responsibility, the burden shifts to the nonmovant to show the existence of a genuine issue of material fact. Id. “If the nonmoving party fails to make ‘a sufficient showing on an essential element of her case with respect to which she has the burden of proof,’ the moving party is entitled to summary judgment.” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 106 5.Ct. 2548, 91 L.Ed.2d 265 (1986)) (footnote omitted). “In reviewing whether the nonmoving party has met its burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir.1992) (internal citations and quotations omitted). “Summary judgment is justified only for those cases devoid of any need for factual determinations.” Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir.1987) (citation omitted). “The applicable Rule 56 standard is not affected by the filing of cross-motions for summary judgment.” Godard v. Alabama Pilot, Inc., 485 F.Supp.2d 1284, 1291 (S.D.Ala.2007); see also May v. A Parcel of Land, 458 F.Supp.2d 1324, 1333 (S.D.Ala.2006) (same). Indeed, the Eleventh Circuit has explained that “[cjrossmotions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed.” United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir.1984) (citation omitted); see also Wermager v. Cormorant Tp. Bd., 716 F.2d 1211, 1214 (8th Cir.1983) (“the filing of cross motions for summary judgment does not necessarily indicate that there is no dispute as to a material fact, or have the effect of submitting the cause to a plenary determination on the merits”). Nonetheless, “cross-motions may be probative of the absence of a factual dispute where they reflect general agreement by the parties as to the dispositive legal theories and material facts.” Godard, 485 F.Supp.2d at 1291; see also May, 458 F.Supp.2d at 1333. III. ILSFDA Cause of Action (Count One). A. Plaintiffs’ Motion for Summary Judgment as to Liability. “The ILSFDA was intended to curb abuses accompanying interstate land sales.” Winter v. Hollingsworth Properties, Inc., 777 F.2d 1444, 1448 (11th Cir.1985). Indeed, “[t]he underlying purpose of the [ILSFDA] is to insure that a buyer, prior to purchasing certain kinds of real estate, is informed of facts which will enable him to make an informed decision about purchasing the property.” Law v. Royal Palm Beach Colony, Inc., 578 F.2d 98, 99 (5th Cir.1978); see also Winter, 777 F.2d at 1449 (statute requires that buyer receive information necessary to make his decision prior to entering into purchase agreement); United States v. Steed, 674 F.2d 284, 287 (4th Cir.1982) (ILSFDA “is a comprehensive statute requiring subdivision developers, unless exempt, to furnish prospective purchasers pertinent information about lots offered for sale”). In light of its remedial objectives, the ILSFDA “must be applied liberally in favor of broad coverage,” with exemptions being construed “narrowly, in order to further the statute’s purpose of consumer protection.” Pigott v. Sanibel Development, LLC, 576 F.Supp.2d 1258, 1267 (S.D.Ala.2008) (citations omitted); see also Schatz v. Jockey Club Phase III, Ltd., 604 F.Supp. 537, 541 (S.D.Fla.1985) (explaining that ILSFDA “should be construed not technically, but flexibly to effectuate its remedial purposes”). Plaintiffs have unquestionably made a prima facie showing that their transactions with Holiday Isle fall within the ambit of the ILSFDA. The Holiday Isle condominium development was marketed as a 7-story building consisting of 144 residential units. (Doc. 65, Plaintiffs’ Exh. 1, at ¶ 3.) Those units were, by all appearances, subject to a “common promotional plan” within the meaning of the ILSFDA. See 15 U.S.C. § 1701(4) (defining “common promotional plan” as “a plan, undertaken by a single developer or a group of developers acting in concert, to offer lots for sale or lease”). Moreover, such units were marketed and sold in interstate commerce, including marketing efforts by a Florida real estate broker. (Doc. 65, Plaintiffs’ Exh. 2, at HI-000268; Wesch Dep., at 106.) One or more purchasers (albeit not the plaintiffs in this case) signed their purchase agreements at the broker’s offices in Destín, Florida. (Doc. 73, Exh. B, at 22-23.) Against this showing that the Project lies within the scope of the ILSFDA, Holiday Isle has identified no countervailing facts, has invoked no specific exemptions, and has advanced no arguments that the Project is for any reason exempt from the disclosure requirements of the ILSFDA. Having found (based on the parties’ summary judgment submissions) that the Project was covered by the ILSFDA, the Court now turns to the specific aspects of that statute germane to these proceedings. One of the ILSFDA’s requirements is that a developer selling a nonexempt lot must furnish the purchaser with a document called a “property report” in advance of the execution of a purchase agreement. See 15 U.S.C. § 1703(a)(1)(B) (declaring it unlawful for a developer to use means of communication in interstate commerce “to sell or lease any lot unless a printed property report ... has been furnished to the purchaser or lessee in advance of the signing of any contract or agreement by such purchaser or lessee”); 24 C.F.R. § 1710.3 (“In nonexempt transactions, the developer must give each purchaser a printed Property Report ... in advance of the purchaser’s signing of any contract or agreement for sale or lease.”). “The fundamental purpose of the property report requirement is to provide information designed to assist potential buyers in making a fully-informed decision whether to purchase.” Pigott, 576 F.Supp.2d at 1267 (citation and internal quotation marks omitted). It is undisputed that Holiday Isle did not furnish any of the plaintiffs in this case with the requisite property report prior to their execution of their purchase agreements. By its terms, the ILSFDA provides that if a developer fails to furnish the requisite property report to the purchaser in advance of the latter’s execution of the purchase agreement, “such contract or agreement may be revoked at the option of the purchaser ... within two years from the date of such signing, and such contract or agreement shall clearly provide this right.” 15 U.S.C. § 1703(c) (emphasis added). It is undisputed that none of the purchase agreements drafted by Holiday Isle, presented to plaintiffs, and executed by the parties included the notice required by § 1703(c) pertaining to purchasers’ right of revocation for want of a property report. Plaintiffs’ revocation theory having previously been dismissed as time-barred by this Court, see Taylor v. Holiday Isle, LLC, 561 F.Supp.2d 1269, 1276 (S.D.Ala.2008), all that remains of Count One are plaintiffs’ claims for damages. As set forth supra, the summary judgment record reflects that the Project is subject to ILSFDA’s disclosure requirements, and Holiday Isle has offered neither evidence nor argument to the contrary. Moreover, Holiday Isle has conclusively admitted that it did not comply with § 1703(c)’s requirement that the purchase agreements spell out plaintiffs’ right to revoke the deal at their option within two years if (as happened here) no property report was furnished to them prior to execution. Stringing these points together, the Court finds as a matter of law that Holiday Isle violated 15 U.S.C. § 1703(c) by omitting from the purchase agreements language apprising plaintiffs of them right to rescind for want of a property report. As such, plaintiffs’ Motion for Partial Summary Judgment is granted as to Count One, and Holiday Isle is liable to plaintiffs for any damages they incurred that were proximately caused by that § 1703(c) violation. B. Defendant’s Motion for Summary Judgment as to Damages. Notwithstanding the Court’s granting of plaintiffs’ Motion for Partial Summary Judgment as to Count One, Holiday Isle maintains in its cross-motion that Count One should be dismissed because plaintiffs cannot prove that they were damaged in any way by Holiday Isle’s omission from the agreements of notice concerning their rescission rights. Defendant points to no deposition testimony or other evidence tending to show that plaintiffs have not sustained damages as a result of the § 1703(c) violation, but instead simply makes a general, conclusory statement that no such damages exist. In opposing defendant’s Motion, plaintiffs maintain that the summary judgment record is replete with evidence that if Holiday Isle had included the § 1703(c) language concerning their rescission rights, they would have rescinded within the two-year period, and would never have lost their security deposits. For example, plaintiff Jay Murray avers that he reread the purchase agreement in late 2006 or early 2007 to determine his and Holiday Isle’s respective rights and obligations when he became concerned that the unit would not be completed by April 1, 2007. (J. Murray Aff. (doc. 65-11), at ¶ 7.) According to Jay Murray, “Had the contract contained a provision stating that I could have rescinded the contract with[in] two years of my execution of it, I would have checked the date of execution and, given that the units and development did not appear to be in a position for use or rental, I would have rescinded the Contract.” (Id., ¶ 8.) Plaintiff John Gardner makes a similar averment. (J. Gardner Aff. (doc. 65-16), ¶ 6.) Plaintiff Celeste Taylor testified in her deposition that had her purchase agreement specified that she had the right to rescind it, she would have investigated that right. (Taylor Dep., at 61.) Likewise, plaintiff Arthur Fitzner testified that, in hindsight, he wished that he had been told of his right to rescind in two years, raising an inference that he would have exercised that right had Holiday Isle imparted such knowledge. (Fitzner Dep., at 64.) Plaintiff Tracey Gardner said the same thing. (Gardner Dep., at 72.) Plaintiffs’ point is that they were damaged by Holiday Isle’s breach of the § 1703(c) disclosure requirement because they were kept in the dark concerning their rescission rights until it was too late to exercise them. On that basis, plaintiffs contend that their damages proximately caused by Holiday Isle’s § 1703(c) violation are the loss of them security deposits and interest on same that they would have received had Holiday Isle apprised them of them rescission rights in the agreements, inasmuch as they would have exercised those rights in a timely fashion had they known about them. Confronted with plaintiffs’ evidence of damages, Holiday Isle offers a perplexing argument that “[i]f Plaintiffs had any damages, their opportunity for any attempt to show them has long expired.” (Defendant’s Reply (doc. 99), at 6.) The Federal Rules of Civil Procedure provide otherwise. Plaintiffs’ opportunity to come forward with a showing of damages is right now, in response to Holiday Isle’s Rule 56 motion predicated on lack of damages. See generally Hickson Corp. v. Northern Crossarm Co., 357 F.3d 1256, 1260 (11th Cir.2004) (“To survive summary judgment, the nonmoving party bearing the ultimate burden of proof at trial must come forward with evidence sufficient to withstand a directed verdict motion.”). This, of course, is exactly what plaintiffs have done. In the absence of evidence or persuasive argument that plaintiffs’ summary judgment evidence improperly contradicts their discovery responses or was withheld during discovery, defendant’s suggestion that the summary judgment stage is too late in the game for plaintiffs to show injury has no discernable basis. Next, Holiday Isle attempts to impugn plaintiffs’ damages evidence by asserting that plaintiffs’ “filing a motion for ‘partial’ summary judgment on liability only is a transparent admission they cannot prove damages, an essential element to these ILSA claims.” (Doc. 99, at 6.) It is nothing of the sort. Plaintiffs moved for summary judgment as to liability only on Count One because they properly recognized that whether and how much they have been damaged are questions of disputed fact that are not amenable to disposition via the Rule 56 vehicle. It is neither unusual nor inappropriate for plaintiffs in federal court to seek summary judgment as to liability only, leaving their damages to be proven at trial, and no adverse inference is warranted from these plaintiffs’ decision to frame their motion for summary judgment in that fashion. Defendant also seeks to discredit plaintiffs’ damages showing via misreading of the statute. According to Holiday Isle, “[sjince the essence of ILSA’s Section 1703(c) is the Property Report, Plaintiffs must show damages caused by not receiving a Property Report before they signed their agreements.” (Doc. 99, at 7.) Defendant furnishes neither authority nor explanation for this conclusory interpretation. More to the point, this construction of § 1703(c) appears wholly divorced from the statutory language. As the Court reads it, § 1703(c) consists of two distinct parts,, a rescission element and a notice element. First, that section creates a two-year option for a purchaser to rescind a purchase agreement for a lot as to which the developer failed to provide a required property report. Nothing in the statutory language purports to confíne or limit this rescission option to only those cases in which the purchaser has incurred actual damages by dint of the seller’s failure to furnish a property report; to the contrary, that option is couched as an absolute, unfettered right on the part of the purchaser. Second, § 1703(c) requires the purchase agreement clearly to delineate the buyer’s rescission rights. The statutory language does not circumscribe this disclosure obligation to cases in which the purchaser was harmed by the seller’s failure to provide a property report. Rather, the crux of the provision is the seller’s obligation in all non-exempt transactions to notify a purchaser in writing of his or her right to rescind. Where a purchaser has been damaged by nondisclosure of these rescission rights as required by § 1703(c), the purchaser plainly has an actionable ILSFDA claim pursuant to § 1709(b). It is under this second aspect of § 1703(c) that Count One is proceeding. Simply stated, the text of § 1703(c) does not support Holiday Isle’s contention that plaintiffs’ damages must necessarily be tied to their lack of receipt of a property report. Section 1703(c) unambiguously requires a seller to provide notice to a purchaser of his or her right to rescind the agreement within two years if no property report has been provided. If, as plaintiffs have shown, no notice was provided and they were harmed as a result of that lack of notice of their rescission rights, then they may have a cognizable claim for damages. Whether or not plaintiffs were damaged by the developer’s failure to furnish them a property report is irrelevant because their rescission rights exist independently of any damages flowing from the lack of a property report. In other words, plaintiffs’ rescission rights were absolute where no property report was given, and if plaintiffs can establish that (a) defendant did not tell them of their right to rescind, (b) they did not know of their right to rescind until after the two-year rescission period had expired, (c) they would have timely exercised their rescission option had Holiday Isle informed them of same as the ILSFDA required it to do, and (d) they have incurred damages as a result of their inability timely to exercise their rescission option, then they are entitled to recover those damages under § 1709(b) of the ILSFDA. As its next basis for overriding plaintiffs’ damages showing, Holiday Isle points to record evidence that several plaintiffs are savvy real estate market players and that “no Plaintiff has any practical or equitable cause for complaints.” (Doc. 99, at 8.) Certainly, the record supports defendant’s stance that Richard Murray has bought and sold raw land on multiple occasions (R. Murray Dep., at 27), that Celeste Taylor previously worked for Holiday Isle’s manager as a marketing director (Taylor Dep., at 9), that Arthur Fitzner is in the business of owning and managing real estate (Fitzner Dep., at 11), and that Jay Murray previously contracted to buy a condominium unit elsewhere and “flipped” it for a profít (J. Murray Dep., at 20). This aspect of defendant’s showing is unavailing on summary judgment for two reasons. First, the legal standard for recovery of damages under the ILSFDA is not whether a plaintiff has “practical or equitable cause for complaints.” If Holiday Isle violated its disclosure obligations under § 1703(c), and if such violation proximately caused damages to plaintiffs, then plaintiffs are entitled to recover those damages in this action, notwithstanding any “practicalities” or “equities.” Second, that plaintiffs may have some measure of sophistication creates, at most, questions of fact as to whether they did or did not know about their rescission rights under the ILSFDA. Defendant has pointed to neither deposition testimony nor other evidence establishing that plaintiffs were aware of their right to rescind, independently of Holiday Isle’s disclosure obligations, prior to expiration of their time frame for doing so. That plaintiffs may have had some familiarity with other aspects of real estate sales and management is not tantamount to an admission that they were aware of them rescission rights, so as to negate their damages caused by defendant’s failure to notify them of same. In a more direct challenge, defendant attacks plaintiffs’ testimony that they would have rescinded in a timely manner had they known they had a right to do so as “self-serving astigmatic hindsight,” “fl-logical (circular) reasoning,” and an “unreasoned suggestion” for claiming “illogical damages.” (Doc. 99, at 7-8.) Such derisive name-calling cannot avail Holiday Isle. To the extent that defendant is exhorting this Court not to believe plaintiffs’ statements, that sort of credibility assessment is ill-suited for the Rule 56 context. See, e.g., Moorman v. UnumProvident Corp., 464 F.3d 1260, 1266 n. 1 (11th Cir.2006) (“Credibility determinations at the summary judgment stage are impermissible.”). Moreover, notwithstanding defendant’s efforts to brand it so, the Court perceives nothing about plaintiffs’ theory of damages that is “illogical.” Plaintiffs failed to exercise their statutory option to rescind their purchase agreements within two years for want of a property report. As a result, they lost their right to recover their security deposits and walk away from contracts on which (for whatever reason) plaintiffs no longer wished to close. The question is why they did not rescind in time. If plaintiffs prove at trial (as they have averred in declarations and deposition testimony) that the reason why they did not rescind in a timely manner was that Holiday Isle failed to disclose their right to rescind in the purchase agreements, as Holiday Isle was obligated to do under § 1703(c), then plaintiffs will be entitled to recover those lost security deposits, and potentially interest and attorney’s fees, as damages. To hold otherwise would be effectively to excise the § 1703(c) notice of rescission rights requirement from the text of the statute. In short, plaintiffs’ theory of recovery is legally sound, and will not be disallowed on summary judgment just because Holiday Isle disparages it. Lastly, defendant maintains that plaintiffs’ evidentiary showing is inadequate to establish that they were, in fact, damaged in this respect. Holiday Isle points to a paucity of evidence that plaintiffs other than Jay Murray read their agreements or that plaintiffs wanted to rescind their agreements prior to the expiration of the two-year period. Holiday Isle also identifies record evidence that the Gardners do not recall any provisions of their purchase agreement, and suggests that if the other plaintiffs were relying on Jay Murray to read and interpret their contracts for them, it was unreasonable of them to do so because he was not a party to any agreement other than his own and that of his wife, plaintiff Lisa Murray. While these facts (if accurate) may muddy the waters and create genuine issues of material fact as to whether plaintiffs’ failure to rescind their agreements in a timely manner was actually caused by Holiday Isle’s violation of § 1703(c), they do not conclusively disprove plaintiffs’ damages so as to entitle Holiday Isle to judgment as a matter of law on Count One. In light of the foregoing, defendant’s Motion for Summary Judgment is denied as to plaintiffs’ damages claim for the § 1703(c) violation alleged in Count One. The Court finds that triable issues remain as to (a) whether Holiday Isle’s violation of its ILSFDA disclosure obligations under § 1703(c) proximately caused plaintiffs not to exercise their right of rescission in a timely manner, and (b) if so, the amount of each plaintiffs damages. Those aspects of Count One will proceed to trial. IY. Declaratory Judgment Cause of Action (Count Two). Count Two of the Complaint is a state-law claim requesting a declaration of the parties’ respective rights and obligations under the purchase agreements entered into between plaintiffs and Holiday Isle. According to the Complaint, Holiday Isle was obligated by paragraph 6(B) of those agreements to refund plaintiffs’ security deposits because the units were not completed within the timeframe specified by contract. The Complaint further alleges that Holiday Isle breached those agreements by (i) not providing units that were suitable for occupancy within a two-year period, (ii) not allowing unit owners ingress to and egress from their units, (iii) not completing common areas, (iv) not allowing unit owners to occupy their units or use common areas, and (v) drawing on plaintiffs’ letters of credit in the total amount of $564,600 even though Holiday Isle was in breach and plaintiffs had not defaulted. Both sides have filed dueling motions for summary judgment as to Count Two. A. Relevant Facts. 1. The Preconstruction Purchase and Escrow Agreements. The parties are in agreement as to most of the facts concerning the purchase agreements, including such matters as who drafted them, who executed them, when their effective dates were, and what their contents were. For instance, it is undisputed that Holiday Isle prepared the “Preconstruction Purchase and Escrow Agreements” (the “Agreements”) at issue. (Doc. 65, Plaintiffs’ Exh. 3, at # 6.) It is likewise undisputed that all plaintiffs and Holiday Isle signed their respective Agreements in February and March 2005, except that plaintiff Fitzner’s Agreement was not executed by Holiday Isle until later. Specifically, plaintiffs John and Tracey Gardner signed their Agreement to purchase Unit 102 on March 3, 2005, with Holiday Isle executing same on March 7, 2005. (Wesch Aff. (doc. 69-2), at Exh. A.) Plaintiff Arthur Fitzner signed his Agreement to purchase Unit 121 on March 3, 2005, with Holiday Isle following suit on July 14, 2005. (Id. at Exh. B.) Plaintiff Richard Murray signed his Agreement to purchase Unit 122 on February 22, 2005, with Holiday Isle executing same on March 7, 2005. (Id. at Exh. C.) Plaintiffs Lisa and Jay Murray signed their Agreement to purchase Unit 706 on February 27, 2005, and Holiday Isle signed it on March 7, 2005. (Id. at Exh. D.) Finally, plaintiff Celeste Taylor signed her Agreement to purchase Unit 203 on February 28, 2005, with Holiday Isle executing that Agreement on February 4, 2005. (Id. at Exh. E.) Each Agreement required the purchaser to pay an earnest money deposit of 20% of the purchase price upon execution, such amount to be held by an escrow agent, with the balance due at closing. (Agreements, ¶ 2(a).) To satisfy the deposit requirement, the Agreements granted purchasers the option of delivering to Holiday Isle a standby letter of credit, in lieu of cash. (Id., ¶ 2(b).) All plaintiffs in this case selected the letter of credit option, and timely furnished said letters of credit to Holiday Isle. By the terms of the Agreements, “Upon the occurrence of a default by Purchaser under this Agreement, [Holiday Isle] and/or Escrow Agent shall immediately draw on the existing Letter of Credit in whole and create with the proceeds thereof a cash Deposit to be placed with Escrow Agent, with said funds to be delivered to [Holiday Isle] as liquidated damages.” (Id., ¶ 2(b).) The Agreements were clear that Holiday Isle reserved “absolute discretion as to whether or not to proceed with the development of the Condominium.” (Id., ¶ 6(B).) To protect the purchaser in the event that either Holiday Isle opted not to proceed or the construction process was significantly delayed (with or without fault or malfeasance by Holiday Isle), Paragraph 6(B) of the Agreements provided as follows: “If the Unit herein purchased shall not be completed within two (2) years of the effective date of this Agreement, this Agreement shall be null and void and all monies paid hereunder, together with interest accrued thereon, shall be refunded to Purchaser. For the purposes of this section, the effective date of this agreement is the date of its execution or April 1, 2005, whichever occurs later.” (Id.) It being undisputed that all plaintiffs’ Agreements except for Fitzner’s were executed prior to April 1, 2005, their effective date was April 1, 2005, such that Paragraph 6(B) rendered those Agreements null and void unless the “Unit” was “completed” by April 1, 2007. The corresponding completion deadline for Fitzner’s Unit was July 14, 2007, two years after his Agreement was executed by Holiday Isle. Other sections of the Agreements established the parties’' respective rights and obligations concerning closing and default. According to Paragraph 11(a): “Purchaser will be required to close upon the issuance of the certificate of occupancy and recordation of the Condominium Documents. Provided, however, anything else herein contained to the contrary, no interest in the Unit may be conveyed or voted until the Declaration of Condominium is recorded and the Unit is substantially completed, as evidenced by a recorded certificate of substantial completion executed by an independent registered architect or independent registered engineer or by issuance of a certificate of occupancy authorized by law.” (Agreements, ¶ 11(a).) The Agreements provided that the consequences of the purchasers’ failure to close depended on the circumstances for that failure. If a purchaser failed to close on the appointed date with at least 10 days prior notice, and if Holiday Isle were not in default, then all letter of credit proceeds and other funds in the purchaser’s escrow account “shall be paid to [Holiday Isle] as liquidated and agreed upon damages.” (Id.) If, however, a purchaser failed to close because of Holiday Isle’s failure to tender compliance with its obligations on the closing date, then the purchaser’s escrow funds “shall be returned to the Purchaser, in which event this Agreement shall be at an end, and neither party shall owe the other further duty or obligation hereunder. Rescission of the Agreement and return to the Purchaser of the monies held in escrow shall be Purchaser’s sole remedy for default of [Holiday Isle].” (Id.) 2. Status of the Project in Early 2007. On March 28, 2007, the Town of Dauphin Island issued a Certificate of Occupancy (“CO”) for the Project. The CO reflected that a final inspection had been completed on that date and that the structure was built according to plans submitted. The CO further stated as follows: “This Certificate of Occupancy is approved based on the terms of agreement with the Town of Dauphin Island and The Mitchell Company [the Manager of Holiday Isle] as specified by Spectrum and Associates that limit t [sic ] occupancy of private units only NO COMMON SPACES.” (Doc. 73, Plaintiffs’ Exh. C.) All parties are in agreement that the “NO COMMON SPACES” exclusion was warranted given that many of the Project’s amenities were still under heavy construction in late March 2007. The March 28 CO was signed by Joyce Allen, Building Inspector for the Town of Dauphin Island. (Id.; Allen Dep., at 95-96.) In her deposition testimony, Allen agreed with a characterization of the March 28 CO as “a temporary CO as to the units,” and verified that she had authority to revoke that CO. (Allen Dep., at 94-95.) According to Allen, it is commonplace for the Town of Dauphin Island to issue temporary COs. (Id. at 98.) In addition to procuring the March 28 CO, Holiday Isle took other steps in early 2007 to position the Project for closings on particular pre-sold units. Forrest Daniell, a licensed architect, issued a Certification of Completion for each of the five dwelling units at issue in this action, indicating that he had inspected them and deemed each to be “substantially complete as defined by the law of Alabama” as of March 31, 2007. (Wesch Aff., at Exh. J.) To counter defendant’s evidence concerning the status of the Project in the late March 2007 time frame, plaintiffs offer the observations of plaintiffs Taylor and Richard Murray concerning their walkthroughs of their units in or around March 2007, although precise dates for those inspections are not provided. Taylor testified that, at the time of her walk-through, Unit 203 “was not livable.” (Taylor Dep., at 15.) However, plaintiffs proffer no specifics to support that generalization, aside from Taylor’s remarks that she saw a worker “putting a coating” on her patio, the walls appeared unpainted, and there may not have been lights in her Unit. Richard Murray testified that during his walk-through of Unit 122, he observed “[a] half-finished product with the flooring not completed, the tile not completed. The painting wasn’t done. The railings on the balcony were not there.” (R. Murray Dep., at 50.) Plaintiffs offer no evidence concerning the state of the other three units at issue in this litigation during the pertinent time frame. Be that as it may, there is no dispute that Holiday Isle caused to be recorded a 58-page document styled “Declaration of Condominium of Holiday Isle, a Condominium,” in the Probate Court of Mobile County, Alabama, on April 9, 2007. (Wesch Aff., at Exh. H.) The Declaration was recorded in Book 6162, beginning at page 392. (Id.) The significance of this recordation is that Paragraph 11(a) of the Agreements specified that purchasers would be required to close upon “issuance of the certificate of occupancy and recordation of the Condominium Documents.” (Agreements, ¶ 11(a).) Believing that it had satisfied both of these requirements, thanks to the March 28 CO and the April 9 recordation, Holiday Isle moved forward to schedule closings for plaintiffs’ units in the spring of 2007. 3. The Closings and Holiday Isle’s Draw on the Letters of Credit. On March 8, 2007, Holiday Isle sent letters to plaintiffs concerning their five respective units. These letters indicated that the Project was “nearing completion,” that Holiday Isle wished to schedule closings for April and May 2007, and that “all units will be complete by the end of March.” (Wesch Aff., at Exh. K.) The letters provided plaintiffs with instructions for how to schedule their closings, submitted a questionnaire form for plaintiffs to complete in order to expedite the closing process, and indicated that owner walkthroughs of the subject units would be scheduled in conjunction with the closings. Plaintiffs Taylor and Richard Murray participated in walk-throughs, and reported their assessment (to-wit, that the Project was months away from completion) to other plaintiffs, including Jay Murray and John Gardner. (Gardner Aff., ¶ 10; J. Murray Aff., ¶ 12.) No plaintiffs responded to Holiday Isle’s invitation to schedule closings, nor is there record evidence that plaintiffs requested documentation or reassurances from Holiday Isle relative to the CO and recordation requirements of Paragraph 11(a). By all appearances, plaintiffs were simply silent. When plaintiffs failed to schedule closings pursuant to the March 8 letters, Holiday Isle followed up on April 11, 2007 with certified letters (receipt of which was confirmed via signature at delivery) to plaintiffs setting closing dates for each of the five units on June 1, 2007, at a specific time and location. (Wesch Aff., at Exh. L.) Once again, plaintiffs voiced no concerns to Holiday Isle and requested no information concerning COs or recordation. Instead, plaintiffs remained mute, and neither appeared for their scheduled closings nor contacted Holiday Isle to request alternate settings. (Wesch Aff., ¶ 14.) Plaintiff Richard Murray testified that he decided not to close on his unit because it “was not usable” and because he was “disenchanted” that the unit would not be ready that summer. (R. Murray Dep., at 21.) Other plaintiffs testified similarly. Rather than appearing for their closings, plaintiffs (by and through counsel) faxed a letter to Holiday Isle’s escrow agent (albeit not the closing agent) on the designated closing date stating their position that the Agreements were null and void because the Project was not completed by April 1, 2007, further asserting plaintiffs’ objection to any draw on their letters of credit or escrowed funds by Holiday Isle, and stating that plaintiffs intended to file suit concerning this contractual dispute. (Plaintiffs’ Exh. 16.) Plaintiffs (by and through counsel) notified Holiday Isle in writing on June 5, 2007 that they deemed the Agreements null and void for failure to complete the units by April 1, 2007 and that plaintiffs were rescinding the Agreements pursuant to the ILSFDA because of Holiday Isle’s failure to furnish the requisite property report. (Doc. 1, at Exh. B.) Confronted with these circumstances, Holiday Isle concluded that plaintiffs were in default under Paragraphs 11 and 12 of the Agreements, thereby entitling Holiday Isle to draw on their letters of credit. On August 20, 2007, Holiday Isle transmitted substantively similar letters to the banking institutions that had issued irrevocable letters of credit on plaintiffs’ behalf. In each letter, Holiday Isle certified that the sums drawn on such letters of credit were due it because plaintiffs had defaulted on their purchase agreements, such that Holiday Isle was now owed the full deposit amount. (Plaintiffs’ Exh. 17.) Pursuant to Holiday Isle’s certifications, plaintiffs’ banks turned over the full amounts of the respective letters of credit to Holiday Isle, then proceeded to seek recourse from plaintiffs to collect principal and interest on same. For its part, Holiday Isle accepted the letter of credit proceeds as liquidated damages pursuant to Paragraph 12 of the Agreements, which provides that in the event of a purchaser’s default and failure to cure, Holiday Isle “may declare this contracted terminated and all monies ... committed by any Letter of Credit ... on behalf of the Purchaser, shall be paid to [Holiday Isle] as liquidated and agreed upon damages which [Holiday Isle] has sustained and suffered as a result of Purchaser’s default, and thereupon the parties hereto will be released and relieved from all obligations hereunder.” (Agreements, ¶ 12.) B. Analysis. Although the parties’ submissions sometimes conflate them, two distinct aspects of Count Two are implicated by the dueling Rule 56 motions. The first component of Count Two is plaintiffs’ request for a declaration that the Agreements are null and void by operation of Paragraph 6(B)’s two-year completion requirement. The second aspect of that cause of action is plaintiffs’ request for a declaration that, even if the Agreements are not void under Paragraph 6(B), Holiday Isle breached them by wrongfully certifying that plaintiffs were in default, pursuant to Paragraphs 11 and 12, to draw on the letters of credit, when in fact plaintiffs were not in default. Each of these issues will be addressed in turn. 1. Whether the Agreements are Null and Void under Paragraph 6(B). a. Contractual Context. As mentioned, Paragraph 6(B) of the Agreements creates a time element for Holiday Isle’s construction efforts. In particular, that Paragraph provides as follows: “If the Unit herein purchased shall not be completed within two (2) years of the effective date of this Agreement, this Agreement shall be null and void and all monies paid hereunder, together with interest accrued thereon, shall be refunded to Purchaser.” (Agreements, ¶ 6(B).) Plaintiffs say they are entitled to summary judgment on Count Two because Holiday Isle did not satisfy Paragraph 6(B). Conversely, Holiday Isle insists that it is entitled to summary judgment on Count Two because it did satisfy Paragraph 6(B). To apply Paragraph 6(B) in this case, it is imperative to determine the meaning of the terms “Unit” and “completed,” because those terms establish the parameters of Holiday Isle’s temporal obligation. If Holiday Isle did not “complete” a plaintiffs “Unit” within two years after April 1, 2005 (or within two years after July 14, 2005, in the case of Fitzner), then that plaintiffs Agreement is void and that plaintiff is entitled to recover his or her letter of credit proceeds. By contrast, if Holiday Isle did “complete” the plaintiffs “Unit” by the April 1, 2007 deadline (or July 14, 2007, in the case of Fitzner), then the time element of Paragraph 6(B) is satisfied and the Agreement is not null and void under that paragraph. The parties devote much of them summary judgment filings to exposition of their strenuous disagreement over the proper construction of the words “Unit” and “completed.” Into that dense and treacherous thicket this Court must now tread. b. Governing Legal Principles. The parties’ briefs reflect concurrence that the Agreements are governed by Alabama law. Relevant tenets of contract interpretation under Alabama law include the following: “The question whether a contractual term is ambiguous or unambiguous is a question of law for the court to decide.” Hamilton v. Employees’ Retirement System of Alabama, — So.3d -, -, 2009 WL 129981, *3 (Ala. Jan. 16, 2009); see also Mega Life and Health Ins. Co. v. Pieniozek, 516 F.3d 985, 991 (11th Cir.2008) (under Alabama law, whether contract is ambiguous is a question of law for the court). Moreover, “[i]n determining whether the language of a contract is ambiguous, courts construe the words according to the interpretation ordinary men would place on the language used therein.... The words are given the meaning that persons with a usual and ordinary understanding would place on the words.” Progressive Specialty Ins. Co. v. Naramore, 950 So.2d 1138, 1141 (Ala.2006) (citations and internal quotations omitted). “If the terms within a contract are plain and unambiguous, the construction of the contract and its legal effect become questions of law for the court.” Nationwide Ins. Co. v. Rhodes, 870 So.2d 695, 696-97 (Ala.2003) (citation omitted). “General contract law requires a court to enforce, as it is written, an unambiguous and lawful contract.” Drummond Co. v. Walter Industries, Inc., 962 So.2d 753, 780 (Ala.2006). By contrast, “[i]f the trial court finds the contract to be ambiguous, it must employ established rules of contract construction to resolve the ambiguity,” and may only submit the ambiguity to the finder of fact if application of those canons of construction proves insufficient to resolve it. Pieniozek, 516 F.3d at 992 (internal quotations and citations omitted); see also New Gourmet Concepts, Inc. v. Siedo Investments Co., 988 So.2d 961, 967 (Ala.2007) (“When we find an agreement to be ambiguous, we must employ established rules of contract construction to resolve the ambiguity found in the inartfully drafted document.”) (citation omitted). Four time-honored canons of contract construction come into play here. First, “[w]here contract terms are unambiguous, we do not look beyond the plain language of the contract to second-guess the intentions of the parties; nor will we speculate about what may have been the subjective expectations of the parties.... It is not a function of the courts to make new contracts for the parties, or raise doubts where none exist.” Title Max of Birmingham, Inc. v. Edwards, 973 So.2d 1050, 1054 n. 1 (Ala.2007) (citations and internal quotation marks omitted); see also Turner v. West Ridge Apartments, Inc., 893 So.2d 332, 335 (Ala.2004) (“A court may not make a new contract for the parties or rewrite their contract under the guise of construing it.”) (citations omitted). Second, Alabama courts have long recognized that “the words of a contract are to be given their ordinary meaning.” Ex parte Keelboat Concepts, Inc., 938 So.2d 922, 928 (Ala.2005) (citations omitted); see also Brunner v. Ormsby, 10 So.3d 18, 22, 2008 WL 748095, *5 (Ala.Civ.App. Mar. 21, 2008) (same); Chris Myers Pontiac-GMC, Inc. v. Perot, 991 So.2d 1281, 1284 (Ala.2008) (“When interpreting a contract, a court should give the terms of the contract their clear and plain meaning and should presume that the parties intended to do what the terms of the agreement clearly state.”) (citation omitted). Third, it is well established “that a court in seeking to ascertain the intention of the parties in construing a contract, will consider the contract as a whole, although the immediate object of the inquiry is the meaning of a particular clause.” Gulf Coast Realty Co. v. Professional Real Estate Partners, Inc., 926 So.2d 992, 1005 (Ala.2005) (citations omitted). Fourth, “it is a familiar rule of contract construction that any ambiguity must be construed against the drafter of the contract.” Ex parte Palm Harbor Homes, Inc., 798 So.2d 656, 661 (Ala.2001) (citations and internal quotation marks omitted); but see FabArc Steel Supply, Inc. v. Composite Const. Systems, Inc., 914 So.2d 344, 357 (Ala.2005) (cautioning against kneejerk application of this rule and limiting its use with caveat that “[i]f all other rules of contract construction fail to resolve the ambiguity, then, under the rule of contra proferentem, any ambiguity must be construed against the drafter of the contract”) (citation omitted). c. Definition of “Unit.” The first question, then, is the meaning of the term “Unit.” If “Unit” means the specific, private, numbered dwelling unit, and not the purchaser’s share of any common elements of the Project, then that construction favors Holiday Isle. If, however, “Unit” means both the numbered dwelling unit and the purchaser’s proportional share of the Project’s common areas, then plaintiffs would be entitled to summary judgment on Count Two because it is uncontroverted that certain of those common elements were not completed within the two-year window created by Paragraph 6(B). Simply put, then, the question is whether “Unit” (as used in Paragraph 6(B)) means just the purchaser’s four walls, or whether it also encompasses common elements of the Holiday Isle condominium development project. Numerous provisions in the Purchase Agreements bolster the conclusion that the term “Unit” in Paragraph 6(B) refers only to the specific numbered dwelling unit that the purchaser was buying, and not to any common elements. Paragraph 1 defines “Unit” as “the Condominium Unit known as Unit Number_” (Agreements, ¶ 1), corresponding to the specific unit being bought, without regard for common elements. Paragraph 6(B) references Holiday Isle’s absolute discretion to “alter the total number of levels (stories) and Units” {id., 1f 6(B)), which logically could refer only to private units. Even more telling is Paragraph 8, whose heading is “The Unit.” That Paragraph states that “Unit dimensions are approximate; measurements are from the inside surface of the stud walls.” {Id., ¶ 8.) It further indicates that “[t]he Unit will not be decorated” and that “[t]he Unit is being sold unfurnished.” {Id.) This Paragraph 8 would not make sense if “Unit” were construed as including common elements too; after all, certain common elements were decorated and furnished, and stud-wall measurements would be meaningless for common elements. Paragraph 9 specifically distinguishes between Units and common areas by providing that Holiday Isle makes no “warranty regarding the condition of the Unit or of the common areas and facilities.” (Id., ¶ 9.) Paragraph 23 reiterates the distinction by describing a limited warranty “to cover latent defects in the Unit, exclusive of any common areas or common elements.” (Id., ¶ 23.) Thus, when the Agreements are read collectively and the subject subparagraph is examined in context, there is strong textual support for Holiday Isle’s position that the “Unit” referenced in Paragraph 6(B) is simply the purchaser’s four walls, and not any common elements of the Project. Notwithstanding this straightforward reading of the contract terms, the Agreements complicate matters by providing, “All terms used herein shall have the meaning given to them in the Declaration and hereby are incorporated by reference and made a part hereof.” (Agreements, ¶ 22.) By its plain terms, this unassuming bit of draftsmanship (under the guise of the innocuous heading, “Miscellaneous”) obliges the Court to look beyond the four corners of the Agreements to the Declaration of Condominium for the definition of a “Unit.” That Declaration provides that the term “Unit ... shall have same meaning as ‘Unit’ is defined in the Act. The Units are designated on the Plans.” (Wesch Aff., Exh. H, at § 1.27.) The “Act” is also a defined term in the Declaration, meaning “the Alabama Uniform Condominium Act of 1991, Code of Alabama (1975), Section 25-8A-101, et seq.” (Id. at § 1.01.) Thus, the follow-the-bouncing-ball analysis carries us from the Agreements to the Declaration and ultimately to the Alabama Uniform Condominium Act (the “AUCA”) for the proper definition of the term “Unit.” The AUCA answers the question definitively by equating “Unit” to “[a] physical portion of the condominium designated for separate ownership or occupancy.” Ala. Code § 35-8A-103(26). Obviously, common areas, amenities, swimming pools, tennis courts, and the like are not a “physical portion” of the Project “designated for separate ownership or occupancy”; therefore, they unquestionably would not be deemed within the scope of the “Unit” as defined by the Agreements, by way of the Declaration, by way of the AUCA. Any remaining vestige of uncertainty as to whether the AUCA would consider common elements to be part of the “Unit” is conclusively rebutted by the statute’s definition of “Common Elements” as “[a]ll portions of a condominium other than the units.” § 35-8A-103(4). The Alabama Commentary to this section reinforces that conclusion by noting that “[t]he definition of unit represents a significant change from prior law which defined a unit as including its associated common and limited common elements.” § 35-8A-103 (Alabama Commentary, ¶ 27.) This “prior law” has been supplanted by the AUCA, which clearly differentiates common elements from “Units.” In light of the foregoing, the Court finds that common elements are unambiguously excluded from the AUCA’s definition of “Unit,” which is binding on the Declaration and, in turn, the Agreements by their express terms. Accordingly, plaintiffs’ position that Paragraph 6(B)’s use of the term “Unit” encompasses common elements is legally incorrect and fundamentally irreconcilable with the text of the Agreements, and especially Paragraph 22 (which provides that terms in the Agreement will have the meaning given them in the Declaration, which in turn defines “Unit” by reference to the AUCA, which in turn defines “Unit” in a manner that unambiguously excludes common elements). As such, the only portion of the Project that must be “completed” within Paragraph 6(B)’s two-year period is each plaintiffs actual private dwelling unit, and not the amenities and common facilities. Whether common elements were completed within two years is simply irrelevant for purposes of applying Paragraph 6(B) to Count Two. d. Definition of “Completed. ” The next definitional quagmire which the parties traverse in their summary judgment submissions concerns the term “completed.” Under Paragraph 6(B), the Agreements are null and void if plaintiffs’ Units were not “completed” by April 1, 2007 (or, in the case of plaintiff Fitzner, by July 14, 2007). Having ascertained what “Unit” means, the Court now confronts the question of what “completed” means. In its summary judgment motion, Holiday Isle presents neither evidence nor argument that Units 102, 121, 122, 203, and 706 were fully and finally complete by the Paragraph 6(B) deadline. Instead, defendant repeatedly argues that the term “completed” in Paragraph 6(B) actually means “substantially completed,” affording Holiday Isle a great deal more latitude in satisfying the two-year deadline. According to Holiday Isle, because plaintiffs’ Units were substantially completed as of the April 1, 2007 deadline (July 14, 2007, in the case of Fitzner), Paragraph 6(B) does not apply and the Agreements are not null and void under that provision. The inescapable defect in defendant’s analysis is its unfounded insistence on equating “completion” with “substantial completion.” Under fundamental contract construction principles, and in ordinary parlance, the two terms are not synonymous. Paragraph 6(B) requires that plaintiffs’ Units be “completed,” not “substantially completed.” Moreover, the parties obviously distinguished between the two terms, given that Paragraph 11(a) prohibits conveyance of any interest in a Unit until “the Unit is substantially completed.” (Agreements, ¶ 11(a).) Had the parties wished to employ the term “substantially completed” in Paragraph 6(B), they could have done so; indeed, they were obviously aware of the term “substantially completed,” given its use in Paragraph 11(a). The Court must assume that the omission of the word “substantially” in Paragraph 6(B) was intentional and, similarly, that the inclusion of “substantially” in Paragraph 11(a) was not mere surplusage. This is especially true given that Holiday Isle, the drafter of these Agreements, is now urging the Court to gloss over these differences in the .terminology it wrote into these documents. Furthermore, Alabama law instructs that a court interpreting a contract must give its terms “their clear and plain meaning.” Chris Myers, 991 So.2d at 1284. The clear and plain meaning of “completed,” according to a common dictionary reference, is “with no part or element lacking; free from deficiency; entire; perfect; consummate.” Webster’s Revised Unabiidged Dictionaiy. This clear, plain meaning of the term cannot be squared with the “substantially completed” concept pressed by Holiday Isle. Simply put, in ordinary parlance, “completed” means fully and finally completed, with nothing left to be done. This Court cannot and will not rewrite Paragraph 6(B) to say that the lesser threshold of “substantial completion” of the Units is all that is necessary within the two-year build period, where the clear and plain meaning of the terminology used in the Agreements is otherwise. In championing a more lenient “substantial completion” formulation of Paragraph 6(B), Holiday Isle directs the Court’s attention to the strand of Alabama authorities recognizing that “substantial performance of [a building contract] will support a recovery on the contract where in effect the owner has accepted the building.... Substantial performance does not contemplate a full or exact performance in every slight or unimportant detail but performance of all important parts.” Rogers & Willard, Inc. v. Harwood, 999 So.2d 912, 923 (Ala.Civ.App.2007) (citations omitted); see also Miles v. Moore, 262 Ala. 441, 79 So.2d 432, 435 (1955) (“We hold that where a contract is substantially performed by one party and the benefits thereof retained by the other, recovery may be had ... although the proof shows only a substantial performance.”). In other words, the doctrine of substantial performance provides that if a contractor erects a building, and the owner moves in or otherwise accepts it, the owner cannot then refuse to pay the contractor on the technicality of minor deviations in performance as to slight or unimportant details, so long as the contractor performed as to all the important parts. Holiday Isle’s reliance on these authorities is mystifying for two reasons. First, it imputes a legal, specialized definition to the term “completed” that is in stark conflict with the plain, ordinary meaning of the term which Alabama rules of contract construction oblige this Court to apply. Second, and more fundamentally, Holiday Isle selectively overlooks the portions of the authorities it cites wherein Alabama courts have narrowed the circumstances in which the “substantial performance” doctrine applies. This doctrine allows a contractor to recover for its not-quite-complete performance under a contract where the other party has accepted the building or otherwise retained the benefits of the contractor’s work. See Miles, 79 So.2d at 435 (substantial performance applies where one party substantially performs “and the benefits thereof [are] retained by the other”); Rogers & Willard, 999 So.2d at 923 (noting that substantial performance allows recovery on contract “where in effect the owner has accepted the building”). In the case at bar, however, plaintiffs refused to accept the Units and retained no benefits from the work performed by Holiday Isle. The substantial performance cases cited by Holiday Isle have no application in these circumstances. See generally Bentley Systems, Inc. v. Intergraph Corp., 922 So.2d 61, 90-91 (Ala.2005) (agreeing that counterclaim defendant cannot invoke doctrine of substantial performance as a defense against relief sought by counterclaim plaintiff “because it is not the party seeking relief, and that the doctrine of substantial performance simply has no applicability to the facts of this case”). Defendant’s construction of “completed” in Paragraph 6(B) as meaning “substantially completed” is untenable, as a matter of law. Therefore, notwithstanding defendant’s largely unchallenged evidence of substantial completion, Holiday Isle’s Motion for Summary Judgment is denied insofar as it seeks to bar plaintiffs from obtaining a declaration that the Agreements are null and void under Paragraph 6(B). By contrast, plaintiffs maintain in their summary judgment motion that the Units were not completed within the meaning of Paragraph 6(B) by April 1, 2007 (July 14, 2007 in the case of Fitzner), and that they are therefore entitled to a declaration that the Agreements are null and void under that provision. For the reasons stated above, the Court agrees with plaintiffs that the applicable Paragraph 6(B) inquiry is whether construction of the Units was finished (not merely “substantially completed”) within the applicable time frame. The critical questions, then, are as follows: What was the condition of Units 102, 122, 203 and 706 on April 1, 2007, and what