United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued December 12, 2014

Decided September 9, 2015

Before

No. 13-3365

JNS POWER AND CONTROL 

SYSTEMS, INC.,

Plaintiff-Appellee,

v.

350 GREEN, LLC,

Defendant-Appellant.

Appeal from the United States District 

Court for the Northern District of Illinois, 

Eastern Division.

No. 13 CV 03124

Elaine E. Bucklo,

Judge.

O R D E R

This case concerns a dispute over the ownership of certain assets including electric 

vehicle chargers previously owned by 350 Green, LLC. The district court granted 

summary judgment to JNS Power and Control Systems (“JNS”) and ordered specific 

performance. We affirm the district court’s ruling. Although 350 Green maintains that 

JNS lacked standing to make any arguments as to the enforceability of a March 8, 2013

Equity Exchange Agreement to which JNS was not a party, JNS simply responded to

arguments and defenses that 350 Green raised. Next, we agree with the district court that 

ILANA DIAMOND ROVNER, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with FED. R. APP. P. 32.1
No. 13-3365 Page 2

the March 8 Exchange Agreement did not prevent 350 Green from validly entering into

an asset purchase agreement to transfer the assets in question. The Exchange Agreement 

did not close by the date specified in the agreement, and a demand for a non-compete 

agreement constituted a counteroffer. Finally, the district court did not abuse its 

discretion when it ordered specific performance in light of the unique nature of the 

electric car chargers and the agreements related to them. 

I.BACKGROUND

The City of Chicago awarded 350 Green a $1.9 million grant in October 2010 to install 

electric car charging stations in the Chicago area. On June 14, 2012, the City sent 350 

Green a Notice of Default on the agreement governing the Chicago project. 350 Green’s 

members, Mariana Gerzanych and Timothy Mason, then began negotiating with Car 

Charging Group, Inc. (“CCGI”) for the sale of all their membership interests in 350 

Green. The interests would go to a new CCGI subsidiary, 350 Holdings. 

CCGI, 350 Holdings, 350 Green, and the 350 Green members entered into an Equity 

Exchange Agreement with an “Effective Date” of March 8, 2013. Under the Exchange 

Agreement, the 350 Green members would transfer all their membership interests in 350 

Green to 350 Holdings, and in return CCGI would issue CCGI stock shares to the 350 

Green members. The Exchange Agreement provided that the transaction was to close 

“no later than ten (10) business days after the Effective Date” of the agreement, i.e., no 

later than March 22, 2013. 

On the morning of March 21, 2013, the day before the deadline, 350 Green and its 

members sent their executed closing documents to CCGI. CCGI’s counsel confirmed 

receipt but stated counsel was not authorized to circulate CCGI’s executed documents 

and advised 350 Green and its members that “we have not yet closed.” 350 Green’s 

counsel called CCGI’s in-house counsel and stated that 350 Green would consider the 

transaction expired if not closed by the close of business on March 22, the date required 

by the Exchange Agreement. 

The next day, Friday, March 22, CCGI’s counsel emailed 350 Green and its members, 

attaching a six-month non-compete agreement as well as an addendum to extend the 

closing date until March 25 in case CCGI was not able to sign its documents by the end 

of the business day on March 22. The email stated that 350 Green must first sign and 

return both documents before CCGI would send CCGI’s executed Exchange Agreement 

signature pages. Neither 350 Green nor its members signed the non-compete agreement 

or addendum. By Monday, 350 Green members were describing the deal as 
No. 13-3365 Page 3

“terminated” and “cancelled.” On Tuesday, March 26, CCGI sent its executed signature 

pages of the Exchange Agreement to 350 Green. 

About two weeks later, on April 9, 2013, CCGI and 350 Holdings filed suit in federal 

court in New York to compel 350 Green and its members to close the transaction 

pursuant to the Exchange Agreement. By that point, 350 Green and its members were 

already discussing other opportunities beyond CCGI. Indeed, on April 17, 2013, 350 

Green and its members signed an Asset Purchase Agreement (“APA”) with JNS for the 

transfer of certain assets. These assets included 168 completed and installed electric car 

chargers and 51 uninstalled chargers to be used for service at electric vehicle charging 

stations in the Chicagoland area. The APA provided that the deal would close in two 

stages, first upon the APA’s signing and second when contingencies set forth in the APA 

were satisfied. The contingency JNS had to fulfill was the City’s acceptance of the APA 

terms. JNS obtained the City’s acceptance on April 30, 2013.

Before that, however, CCGI, 350 Holdings, 350 Green, and the 350 Green members 

entered into an Addendum to the Exchange Agreement. The Addendum amended the 

March 22, 2013 closing date to April 22, 2013, and it also gave CCGI the right of first 

refusal to match the terms of any electric-vehicle related business opportunities 

presented to the 350 Green members for twelve months beginning on April 22, 2013. 

CCGI and 350 Holdings recognized in the First Addendum that 350 Green had entered 

into the APA with JNS.

Eight days after the APA’s execution, on April 25, 2013, CCGI and 350 Holdings filed 

suit against JNS in the United States District Court for the Northern District of Illinois. 

CCGI and 350 Holdings’s complaint sought a declaration that the APA was void, as well 

as damages for tortious interference with a contract. On May 6, 2013, JNS demanded via 

a letter from its counsel that 350 Green perform under the APA. CCGI, 350 Holdings, 

and 350 Green refused to comply, asserting that the APA was void and not binding.

On May 30, 2013, JNS filed its own complaint in federal court in Illinois. It sought 350 

Green’s specific performance under the APA and sought indemnification from 350 

Green. After expedited discovery, the district court granted JNS’s motion for partial 

summary judgment. 350 Green appeals. 

II. ANALYSIS

We review the district court’s grant of summary judgment de novo. Mintz v. Caterpillar 

Inc., 768 F.3d 673, 679 (7th Cir. 2015). In doing so we view the record in the light most 

favorable to 350 Green and draw all reasonable inferences from the evidence in its favor. 

Id. Summary judgment is appropriate where 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(a). 
No. 13-3365 Page 4

Contract interpretation is particularly suited to resolution by summary judgment. Hickey 

v. A.E. Staley Mfg., 995 F.2d 1385, 1389 (7th Cir. 1993).

A. No Standing Bar to JNS’s Response to 350 Green’s Claim that Exchange 

Agreement Made APA Null and Void

350 Green, through its new membership, maintains that at the time 350 Green entered 

into the APA, 350 Green was bound to the March 8, 2013 Exchange Agreement between 

it and CCGI. The consequence, according to 350 Green, is that 350 Green could not 

validly enter into the APA. JNS, however, contends that the Exchange Agreement did 

not prevent 350 Green from entering into the APA on April 17, 2013 and that the APA is 

an enforceable contract. 

The first argument 350 Green makes on appeal is that JNS lacks standing to ask the 

court to interpret the March 8, 2013 Exchange Agreement because JNS is neither a party 

to nor an intended third-beneficiary of that agreement. In support, it points to cases 

under Florida law, which governs the Exchange Agreement, holding that a non-party to 

a contract cannot seek to enforce an agreement unless the party is an intended 

third-party beneficiary of the contract. See, e.g., Metro. Life Ins. Co. v. McCarson, 467 So. 2d 

277, 279 (Fla. 1985); Sun Commodities, Inc. v. C.H. Robinson Worldwide, Inc., No. 

11-627380-CIV, 2012 WL 612616 (S.D. Fla. Feb. 23, 2012).

JNS, however, is not seeking to enforce the March 8, 2013 Exchange Agreement 

between CCGI and 350 Green. JNS’s complaint against 350 Green seeks relief based only 

on the APA; JNS is seeking to enforce the APA, not the Exchange Agreement. Perhaps 

recognizing that JNS is not attempting to enforce the Exchange Agreement, 350 Green 

asserts that an entity that is not a party or an intended beneficiary also cannot “interpret” 

the contract. But it was 350 Green who put the Exchange Agreement at issue in this case,

not JNS. 350 Green asserted as an affirmative defense to JNS’s complaint, and argued 

again in the summary judgment briefing, that the Exchange Agreement barred JNS’s 

claims. In response to these assertions and to arguments from 350 Green, JNS addressed 

and discussed the Exchange Agreement. There is no reason that JNS could not respond 

to 350 Green’s affirmative defense and arguments at summary judgment based on the 

Exchange Agreement by making its own arguments as to what the Exchange Agreement 

means. There is no standing problem here. 

B. March 8, 2013 Equity Exchange Agreement Did Not Prevent 350 Green from 

Entering into APA

350 Green also maintains that the March 8, 2013 Exchange Agreement was binding 

upon it at the time it entered into the APA, or at the least that there is a genuine issue of 
No. 13-3365 Page 5

material fact on this issue. The result of being bound to the March 8 Exchange 

Agreement terms, 350 Green contends, is that the later-signed APA is void. 

The Exchange Agreement did not close within ten business days after its effective date 

(i.e., it did not close by March 22, 2013) as required by the contract’s terms. Nonetheless, 

350 Green maintains that the passage of that date without closing is not dispositive as to 

whether the Exchange Agreement is enforceable. Rather, 350 Green contends that the 

Exchange Agreement became enforceable when CCGI sent its executed signature pages 

on March 26, four days after the Exchange Agreement’s required closing date. 

350 Green emphasizes that the Exchange Agreement did not contain a “time is of the 

essence clause,” nor did it contain a specific closing date. 350 Green also contends that 

what it terms CCGI’s “brief delay” in closing should be excused here on the basis that

the 350 Green members did not notify CCGI that time was of the essence, did not state 

that they considered CCGI to be in default because of the delayed closing, and did not 

suffer damages. Without notice of default and an opportunity to cure, 350 Green argues

the March 22 deadline did not have to be met for the Exchange Agreement to be 

enforceable, and it maintains that the signed pages CCGI sent four days later put the 

agreement into effect. We disagree that the later-signed pages made the agreement 

enforceable.

The lack of a “time is of the essence” provision here does not help 350 Green. 350 

Green points to cases under Florida law supporting the proposition that when there is 

not a “time is of the essence” provision in a contract, Florida law frowns on strict 

enforcement of deadlines. But the cases to which 350 Green points largely concern strict 

enforcement of performance deadlines without notice and an opportunity to cure, after 

contract formation. See, e.g., McNeal v. Marco Bay Assocs., 492 So. 2d 778, 781 (Fla. Dist. Ct. 

App. 2006). Our case, though, concerns not a delay in performing a contract once formed 

but rather a “delay” in forming a contract. 350 Green also cites an unpublished decision,

Inspiration Yacht Charters, Inc. v. Inspiration Yacht Charters II, Inc., 488 Fed. App’x 408 (11th 

Cir. 2012), but there both parties had executed closing documents on the closing date. 

Here, CCGI had not completed any obligations on the closing date, and had not yet 

accepted the offer.

350 Green cites Henry v. Ecker, 415 So. 2d 137 (Fla. Dist. Ct. App. 1982) for the 

proposition that time is not of the essence in Florida law unless the contract so expressly 

provides, but that is not what the case says. Rather, that case says, “Time is not of the 

essence in contracts for the sale and purchase of real estate unless the contract so provides.” 

Henry, 415 So. 2d at 140 (emphasis added). Our case, however, does not involve the sale 

or purchase of real estate. 
No. 13-3365 Page 6

Instead, under Florida law, 

The law is clear that generally “time is considered to be of the essence where an 

agreement specifies, or where such may be determined from the nature of the 

subject matter of the contract, or where treating time as non-essential would 

produce hardship, or where notice has been given to the defaulting party 

requiring that the contract be performed within a stated time, which must be 

reasonable according to the circumstances.”

Command Sec. Corp. v. Moffa, 84 So. 3d 1097, 1100 (Fla. Dist. Ct. App. 2012) (quoting 

Sublime, Inc. v. Boardman’s Inc., 849 So. 2d 470, 471 (Fla. Dist. Ct. App. 2003)). On March 

21, 2013, CCGI’s in-house counsel emailed 350 Green’s counsel stating that the Exchange 

Agreement was not closed and then later that day sent an email to the 350 Green 

members with a proposed addendum to extend the closing date. 350 Green’s counsel 

John Pierce, whose affidavit is in the record, responded to CCGI’s counsel that same day 

“in no uncertain terms that 350 Green would consider the transaction to be expired if not 

closed by the close of business on March 22, 2013, the date mandated in the Exchange 

Agreement.” No other evidence contradicts this assertion to create a genuine issue of 

material fact. The time period for performance was also reasonable. 350 Green stated via 

counsel on March 21 that the closing date remained the following day. Though short, 

that was not unreasonable as the only action required was to send CCGI’s signature 

pages. And CCGI admitted that the signature pages were already signed and ready to be 

delivered before March 22. 

Not only was the delay here at the contract formation stage, but CCGI’s signed 

documents were contingent upon new terms—the six-month noncompetition and 

solicitation agreement. As the district court found, that response was “not merely a ‘brief 

delay’ in CCGI’s performance, but rather CCGI’s unmistakable attempt to renegotiate 

the terms of the parties’ deal.”

“A counteroffer operates as a rejection of a preceding offer.” Ribich v. Evergreen Sales & 

Service, Inc., 784 So. 2d 1201, 1202 (Fla. Dist. Ct. App. 2001); see also Polk v. BHRGU Avon 

Properties, LLC, 946 So.2d 1120, 1123 (Fla. Dist. Ct. App. 2006); Nichols v. Hartford 

Insurance Co. of the Midwest, 834 So. 2d 217, 220 (Fla. Dist. Ct. App. 2002). Here, CCGI 

responded after the deadline with a new demand that 350 Green sign a non-compete 

agreement and addendum as a condition of CCGI’s acceptance. This demand 

constituted a counteroffer. 350 Green and its members were not obligated to accept the 

counteroffer, and they did not. See Nichols, 834 So. 2d at 220. 350 Green argues that 

“Nichols is completely distinguishable because Nichols involved a dispute over a 

proposed settlement agreement. The instant action involves a contract that was already 
No. 13-3365 Page 7

executed by the parties and is not a case where the parties were attempting to settle a 

disputed issue and where there was no ‘meeting of the minds.’” Reply Br. at 12. That 

Nichols involved a settlement agreement is not a material distinction; Nichols is relevant 

for the basic contract law principles it applies. Moreover, 350 Green’s assertion that the 

instant case involved an already-executed contract begs the question, as CCGI had not 

delivered its executed documents by the agreement deadline. 

In short, as the district court reasoned, “At issue here is not merely a ‘brief delay’ in 

CCGI’s performance, but rather CCGI’s unmistakable attempt to renegotiate the terms of 

the parties’ deal after 350 Green and its members had performed their closing obligations 

under the Exchange Agreement.” Mem. Op. & Order, Nos. 13 C 3124 & 13 C 4020, at 14 

(Sept. 24, 2013). The cases to which 350 Green points do not support its argument that 

the March 8, 2013 Exchange Agreement was enforceable. Rather, there is no genuine 

issue of material fact that the transaction expired on March 22, 2013. The March 8, 2013 

Exchange Agreement therefore did not prevent 350 Green from entering into the APA. 

C. Specific Performance Justified

350 Green also argues that specific performance of the APA is not an appropriate 

remedy in this case. To state a cause of action for specific performance, there must first 

be a valid, binding, and enforceable contract. McCormick Rd. Assocs. L.P. II v. Taub, 659 

N.E.2d 52, 54 (Ill. App. Ct. 1995). 350 Green’s only argument on appeal that the APA was 

not an enforceable contract is that the 350 Green members had no right to terminate or 

modify the Exchange Agreement by selling off assets that were part of the consideration 

of that agreement. As we have already explained, the Exchange Agreement did not 

prevent 350 Green from entering into the APA because the March 8 Exchange 

Agreement was not enforceable.

The district court’s award of specific performance as the remedy is an exercise of 

equitable discretion that we review for abuse of discretion. Medcom Holding Co. v. Baxter 

Travenol Labs., Inc., 106 F.3d 1388, 1402 (7th Cir. 1997). As an equitable remedy, specific 

performance is only available if damages are not adequate as a remedy. Landers v. 

Fronczek, 532 N.E.2d 265, 268 (Ill. App. Ct. 1988). Money damages may not be adequate 

when the goods to be transferred are unique, so specific performance may be ordered for 

unique goods. Ruddock v. First Nat. Bank of Lake Forest, 559 N.E.2d 483, 487 (Ill. App. Ct. 

1990) (ruling rare clock sufficiently unique to warrant specific performance); Chariot 

Holdings, Ltd. v. Eastmet Corp., 505 N.E.2d 1076, 1085 (Ill. App. Ct. 1987) (“The object of 

courts of equity is to enforce rather than to evade contracts and our courts have 

repeatedly held that courts of equity will enforce a valid contract for the sale of unique 

assets as a matter of right.”). 
No. 13-3365 Page 8

We find no abuse of discretion in the district court’s conclusion that the assets to be 

transferred here are unique and warrant specific performance. The APA assigned to JNS 

all of 350 Green’s rights in the Chicago project, which include the electric chargers, both 

installed and those purchased with grant funds but not yet installed, along with 350 

Green’s interests in leases, licenses, and agreements with the hosts for the chargers. The 

district court concluded that the “chargers and the agreements related to them are 

unique, as they are, undisputedly integral to the completion of the Chicago Project.” A 

fundamental purpose of the APA was for JNS to obtain those chargers and the 

corresponding leases; the very purpose of the APA would be defeated if the actual 

chargers were not included. The 219 chargers sold under the APA were necessary to and 

integrated with the work that JNS was to perform under the grant as contemplated by 

the APA. Already, 168 chargers had been installed around the Chicago area, and JNS 

was liable under the APA on the prior liens attached to those chargers. The chargers in 

this case were not fungible. While 350 Green argues that JNS failed to provide sufficient 

evidence that specific performance is warranted in this case, we disagree and find the 

record sufficient to support the district court’s decision. The district court did not abuse 

its discretion when it ordered specific performance.

III. CONCLUSION

The judgment of the district court is AFFIRMED.