IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUITIN AND FOR LEE COUNTY, FLORIDA
CLARK L. DURPO, JR., ET AL.,
Plaintiffs,
vs.
BELLA LAGO CONDOMINIUM AT BAYBEACH CONDOMINIUM ASSOCIATION,INC., ET AL.,
Defendants./
CASE NO. 13-CA-001057
(Consolidated with Case No. 14-CA-000083for Pretrial Purposes)
RESPONSES TO FIRST SET OF INTERROGATORIES FROM CLARK L. DURPO
Pursuant to Florida Rule of Civil Procedure 1.340, Bella Lago Condominium at Bay
Beach Condominium Association, Inc., Casa Marina Association, Inc., Casa Marina II
Condominium Association, Inc., Casa Marina III Condominium Association, Inc., Harbour
Pointe Condominium Association, Inc., Hibiscus Point Condominium Association, Inc., Manatee
Bay at Bay Beach Condominium Association, Inc., Royal Pelican Association, Inc., Sunset Gulf
Condominium Association, Inc., The Palms of Bay Beach Condominium Association, Inc.,
Valencia Villas at Bay Beach Association, Inc., Waterside I at Bay Beach Condominium
Association, Inc., Waterside II at Bay Beach Condominium Association, Inc., Waterside III at
Bay Beach Condominium Association, Inc., Waterside IV at Bay Beach Condominium
Association, Inc., Waterside V at Bay Beach Condominium Association, Inc., Bayside Master
Association, Inc., Waterside Dock Association, Inc., and Estero Bay Improvement Association,
Inc. (collectively the “Responding Parties”), by and through their undersigned attorneys, hereby
file and serve their Responses to Clark L. Durpo’s (“Durpo”) First Set of Interrogatories dated
August 8, 2014 (the “Request” or the “Interrogatories”).
Page 2 of 146
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 6th day of November, 2014, a true and accurate copy of
the above and foregoing has been furnished by electronic mail to the individuals on the attached
service list.
/s/ Michael J. CiccaroneMichael J. Ciccarone, Florida Bar No. 437646Corporate Quarters, Suite 21313180 North Cleveland AvenueNorth Fort Myers FL 33903(239) 997-2200Fax No. (239) 997-2200Email: [email protected] for Defendants, Bella LagoCondominium at Bay Beach CondominiumAssociation, Inc., Casa Marina Association,Inc., Casa Marina II CondominiumAssociation, Inc., Valencia Villas at Bay BeachAssociation, Inc., Waterside I at Bay BeachCondominium Association, Inc., Waterside IIat Bay Beach Condominium Association, Inc.,Waterside III at Bay Beach CondominiumAssociation, Inc., Waterside IV at Bay BeachCondominium Association, Inc., Waterside Vat Bay Beach Condominium Association, Inc.
/s/ Lindsay LeeRon M. Campbell, Florida Bar No. 827061Lindsay Lee, Florida Bar No. 86077Cole, Scott & Kissane, P.A.27300 Riverview Center BoulevardSuite 200Bonita Springs, FL 34134239-690-7900239-738-7778 (fax)[email protected] for Defendants, Casa Marina IIICondominium Association, Inc., HarbourPointe Condominium Association, Inc.,Hibiscus Pointe Condominium Association,Inc., Manatee Bay at Bay Beach CondominiumAssociation, Inc., Royal Pelican Association,
/s/David C. PotterDavid C. Potter, Florida Bar No. 0388254Thomas G. Coleman, Florida Bar No. 0093897BUCHANAN INGERSOLL & ROONEY PC |FOWLER WHITE BOGGSP.O. Box 1567Fort Myers FL 33902(239) 334-7892Fax No. (239) 425-6390Email: [email protected] for Defendants, Bella LagoCondominium at Bay Beach CondominiumAssociation, Inc., Casa Marina Association,Inc., Casa Marina II CondominiumAssociation, Inc., Valencia Villas at Bay BeachAssociation, Inc., Waterside I at Bay BeachCondominium Association, Inc., Waterside IIat Bay Beach Condominium Association, Inc.,Waterside III at Bay Beach CondominiumAssociation, Inc., Waterside IV at Bay BeachCondominium Association, Inc., Waterside Vat Bay Beach Condominium Association, Inc.
/s/ Michele A. CrosaDavid S. Chaiet, Florida Bar No. 963798Michele A. Crosa, Florida Bar No. 39283Eisinger, Brown, Lewis, Frankel & ChaietPresidential Circle, Suite 265-S4000 Hollywood BoulevardHollywood, FL 33021954-894-8000954-894-8015 (fax)[email protected]@[email protected] for Defendants, Casa Marina IIICondominium Association, Inc., Manatee Bay
Page 3 of 146
Inc., Sunset Gulf Condominium Association,Inc., Palms of Bay Beach CondominiumAssociation, Inc., Waterside III at Bay BeachCondominium Association, Inc., Waterside IVat Bay Beach Condominium Association, Inc.
at Bay Beach Condominium Association, Inc.,Royal Pelican Association, Inc., Sunset GulfCondominium Association, Inc., ValenciaVillas at Bay Beach Association, Inc.,Waterside I at Bay Beach CondominiumAssociation, Inc., Waterside II at Bay BeachCondominium Association, Inc.
SERVICE LIST
Timothy J. Murty, Esquire, Murty & Monk, P.A., 1633 Periwinkle Way, Suite A, Sanibel Island,FL 33957-4404
Joseph W. Beasley, Esquire, Stephanie Demos, Esquire, and Jennifer Perez Alonso, Esquire,Beasley & Demos, LLC, 2950 S.W. 27th Avenue, Suite 100, Miami, FL 33133
Tirso M. Carreja, Jr., Shutts & Bowen, LLP, 4301 West Boy Scout Blvd, Suite 300, Tampa, FL33607
David C. Potter, Esquire, and Thomas G. Coleman, Esquire, Buchanan Ingersoll & Rooney PC |Buchanan Ingersoll & Rooney PC | Fowler White Boggs, P.A., P.O. Box 1567, Fort Myers, FL33902
Michael J. Ciccarone, Esquire, Corporate Headquarters, Suite 213, 13180 North ClevelandAvenue, North Fort Myers, FL 33903
Steven G. Koeppel, Esquire, and Greg Bevillard, Esquire, Yeslow & Koeppel, P.A., P.O. Box9226, Fort Myers, FL 33902
Ron M. Campbell, Esquire, and Lindsay Lee, Esquire, Cole, Scott & Kissane, P.A., 27300Riverview Center Boulevard, Suite 200, Bonita Springs, FL 34134
David Chaiet, Esquire, and Michele A. Crosa, Esquire, Eisinger, Brown, Lewis, Frankel &Chaiet, P.A., 4000 Hollywood Boulevard, Suite 265 South, Hollywood, FL 33021
D. Spencer Mallard, Esquire and Nicholas P. Conto, Esquire, Lydecker Diaz, 1221 BrickellAvenue, 19th Floor, Miami, FL 33131
H.O. Brock, Jr., Esquire and Thomas J. Code, Esquire, Becker & Poliakoff, 12140 CarissaCommerce Court, Suite 200, Fort Myers, FL 33966
Michelle Diffenderfer, Esquire, Julia L. Jennison, Esquire, Wayne E. Flowers, and KathrynRossmell, Lewis Longman & Walker, P.A., 515 North Flagler Drive, Suite 1500, West PalmBeach, FL 33401
Page 4 of 146
GENERAL OBJECTIONS
1. The Responding Parties are providing this response without waiver of, or
prejudice to, their right, at any later time, to raise objections to (a) the relevance, materiality, or
admissibility of (i) the Interrogatories or any part thereof, or (ii) statements made in response to
the Interrogatories or any part thereof, or (b) any further demand for discovery involving or
relating to the matters raised in the Interrogatories.
2. The Responding Parties undertake to respond to the Interrogatories only to the
extent required by the Florida Rules of Civil Procedure. The Responding Parties object to the
Interrogatories to the extent they conflict with these Rules.
3. The Responding Parties object to the Interrogatories to the extent they seek legal
conclusions or are more properly considered a request for admission.
4. The Responding Parties object to the Interrogatories to the extent that they call for
information subject to the attorney-client privilege or work product doctrine, or any other
applicable privilege. This includes without limitation any information prepared by any current
non-testifying consultants and investigators. In the event any such information is divulged in
response to the Interrogatories, the divulging of any such information is inadvertent and does not
constitute a waiver of any privilege.
5. The specific responses set forth below are based upon information now available
to the Responding Parties after making a diligent search, within the limited time available to do
so, of any files in their possession, custody, or control that reasonably relate to one or more of
the specific Interrogatories contained in the Interrogatories. The Responding Parties object to the
Interrogatories to the extent they purport to call for information not in the Responding Parties’
possession, custody, or control or to require a search of files that do not reasonably relate to one
Page 5 of 146
or more of the specific Interrogatories contained in the Interrogatories. Further, the Responding
Parties reserve the right at any time to revise, correct, add to, or clarify the specific responses set
forth below.
6. The Responding Parties object to the Interrogatories to the extent they purport to
call for information containing confidential or proprietary, commercial, or financial information
in the absence of a suitable and mutually agreeable protective order or confidentiality agreement
mandating that the confidentiality of such information be preserved and maintained.
7. The Responding Parties incorporate by reference all General Objections and
Reservations asserted by either or both of the Durpos in any response they have made to
interrogatories served on them in this action.
8. The Responding Parties object to divulging any information falling within one of
the General Objections set forth herein or any of the specific objections contained in the
Responses set forth below. To the extent any such information is or may be divulged in response
to the Interrogatories, the divulging of such information is inadvertent and is not to be deemed a
waiver of the objection in question (or any other objection) with respect to the divulged
information or any other information. The responses to the specific interrogatories are subject to
the general responses, reservation, and objections set forth in paragraph 1-8.
Page 6 of 146
ANSWERS TO INTERROGATORIES
1. Identify the name, address, and telephone number of the person answering or
assisting with answering these interrogatories, and, if applicable, the person’s official position or
relationship with the party to whom the interrogatories are directed.
RESPONSE: The Responding Parties state as follows: Errol G. Hohmann, President,
Estero Bay Improvement Association, Inc. Mr. Hohmann can be reached through counsel for the
Responding Parties.
Page 7 of 146
2. List the names, addresses, and phone numbers of all persons who are believed or
known by you, your agent or attorneys to have any knowledge concerning any of the issues in
this lawsuit and specify the subject matter about which the witness has knowledge.
RESPONSE: The Responding Parties object to this interrogatory because the Durpos
objected to a similar interrogatory served on them. The Durpos objected to the interrogatory as
being overbroad, vague and requiring more than called for by the Florida Rules of Civil
Procedure and requiring disclosure of consulting, non-testifying expert witnesses. Unless and
until the Durpos withdraw their objections and respond to the interrogatories propounded on
them, the Responding Parties will stand on the same objections. Subject to and without waiver
of these objections, the following persons may have knowledge concerning the issues raised by
the pleadings in this case:
" All persons identified by the Durpos in their responses to similar interrogatories.
" Agents and representatives of Stardial Investments Company including, without
limitation, Michael Johnson and Kitty Taylor.
" Agents and representatives of Bay Beach Golf Club, Inc. including, without
limitation, Murray Flood and Ken Noble.
" Clark L. Durpo, Jr.
" Clark L. Durpo.
" Agents, representatives and past and present Board members of Estero Bay
Improvement Association, Inc. including, without limitation, Joseph Bishop, Errol
Hohmann, Harold Huber and Gerald Robinson.
" Agents, representatives and past and present Board members of Bayside Master
Association, Inc. including, without limitation, Thomas Taege.
Page 8 of 146
" Agents, representatives and past and present Board members of Waterside Dock
Association, Inc. including, without limitation, Steven Buetler.
" Agents, representatives and past and present Board members of each defendant
condominium association.
" Agents and representatives of Agnoli Barber & Brundage, Inc. including, without
limitation, Rick Barber.
" Agents and representatives of Fenton Associates Architects.
" Agents and representatives of Sanibel Captiva Community Bank.
" Timothy J. Murty.
" Patric Flinn.
Page 9 of 146
3. Identify all experts who you intend to call as a witness at any hearing or in the
trial of this cause.
RESPONSE: The Responding Parties have not yet determined what experts they intend
to call as a witness at any hearing or in the trial of this cause. In addition, the Responding Parties
note that the Durpos objected to a similar interrogatory on the grounds that it calls for
information protected from discovery by Florida Rule of Civil Procedure 1.280(b)(5)(B) and the
work product privilege and on other bases stated in their response. Unless and until the Durpos
withdraw those objections and respond to the interrogatories propounded on them, and until such
time as the Responding Parties have determined what experts they intend to call, the Responding
Parties will stand on those same objections in addition to the response set forth above.
Page 10 of 146
4. Please state and describe with specificity all language in any documents
supporting your alleged irrevocable license, express easement, implied easement, and easement
by necessity giving rise to your legal right to use the System.
RESPONSE: The language and information set forth below support the irrevocable
licenses, express easements and implied easements which provide the Responding Parties the
legal right to use the System. The specific language in any document identified below must be
read in the context of the entire document and all of the language contained in that document.
By pointing to specific language in a document, the Responding Parties are not suggesting that
other language in the document is not relevant to the irrevocable licenses, express easements and
implied easements which provide the Responding Parties the legal right to use the System. The
Responding Parties reserve the right to supplement this response. As seen by the Responding
Parties’ amended pleadings, they are not alleging that there is an easement by necessity.
a) The language contained in the Special Warranty Deed dated January 17, 2003
between Stardial Investments Company and Bay Beach Golf Club, Inc. including,
without limitation, the following language:
Page 11 of 146
The language contained in Exhibit B to this Special Warranty Deed including,
without limitation, the following language:
The language contained in the Agnoli, Barber & Brundage, Inc. survey, dated
May 8, 2002 which is incorporated by reference into this Special Warranty Deed
including, without limitation, the following language: “Proposed Drainage
Easement (Typical)” as seen in numerous locations on this survey.
b) The language contained in the Warranty Deed dated October 31, 2005 by Bay
Beach Golf Club, Inc. to Clark L. (Chip) Durpo, Jr. and Clark L. Durpo including,
without limitation, the following language:
Page 12 of 146
c) The language contained in the Special Warranty Deed dated December 19, 2002
by Stardial Investments Company to Bay Beach Development Company, LLC
including, without limitation, the following language:
Page 13 of 146
Page 14 of 146
In Exhibit A to this Special Warranty Deed, the following language:
The language contained in Exhibit B to this Special Warranty Deed including,
without limitation, the following language:
Page 15 of 146
. . .
Page 16 of 146
. . .
Page 17 of 146
d) The language contained in the Special Warranty Deed dated February 9, 1990
between Stardial Investments Company and Casa Marina Development Inc.
including, without limitation, the following language:
Page 18 of 146
Page 19 of 146
Page 20 of 146
The language contained in Exhibit A to this Special Warranty Deed including,
without limitation, the following language:
e) The language contained in the Special Warranty Deed dated September 9, 1993
between Stardial Investments Company and Casa Marina Development, Inc.
including, without limitation, the following language:
Page 21 of 146
Page 22 of 146
f) The language contained in the Special Warranty Deed dated April 6, 1994
between Stardial Investments Company and Casa Marina Development, Inc.
including, without limitation, the following language:
Page 23 of 146
Page 24 of 146
Page 25 of 146
g) The language contained in the Special Warranty Deed dated March 3, 1995
between Stardial Investments Company and Casa Marina Development, Inc.
including, without limitation, the following language:
Page 26 of 146
Page 27 of 146
Page 28 of 146
h) The language contained in the Special Warranty Deed dated September 15, 1995
between Stardial Investments Company and Casa Marina Development, Inc.
including, without limitation, the following language:
Page 29 of 146
Page 30 of 146
Page 31 of 146
Page 32 of 146
i) The language contained in the Special Warranty Deed dated December 19, 2002
between Stardial Investments Company and Bay Beach Development Company,
LLC including, without limitation, the following language:
Page 33 of 146
The language contained in Exhibit A to this Special Warranty Deed including,
without limitation, the following language:
. . .
Page 34 of 146
The language contained in Exhibit B to this Special Warrant Deed including,
without limitation, the following language:
. . .
Page 35 of 146
. . .
Page 36 of 146
j) The language contained in the Warranty Deed dated November 19, 2004 between
Bay Beach Development, LLC and Bay Beach Development Company, LLC
including, without limitation, the following language:
Page 37 of 146
The language contained in Exhibit A to this Warranty Deed including, without
limitation, the following language:
k) The language contained in the Special Warranty Deed dated December 19, 1995
between Stardial Investments Company and Waterside at Bay Beach, Ltd
including, without limitation, the following language:
Page 38 of 146
Page 39 of 146
Page 40 of 146
The language contained in Exhibit D to this Special Warranty Deed including,
without limitation, the following language:
Page 41 of 146
Page 42 of 146
Page 43 of 146
Page 44 of 146
. . .
Page 45 of 146
. . .
Page 46 of 146
l) The language contained in the Special Warranty Deed dated January 2, 1997
between Stardial Investments Company and Waterside at Bay Beach, Ltd.
including, without limitation, the following language:
Page 47 of 146
Page 48 of 146
Page 49 of 146
The language contained in Exhibit B to this Special Warranty Deed including,
without limitation, the following language:
Page 50 of 146
Page 51 of 146
Page 52 of 146
Page 53 of 146
. . .
. . .
Page 54 of 146
m) The language contained in the Special Warranty Deed dated April 17, 2001
between Stardial Investments Company and Giles Development, L.L.C.
including, without limitation, the following language:
Page 55 of 146
Page 56 of 146
Page 57 of 146
Page 58 of 146
The language contained in Exhibit A to this Special Warranty Deed including,
without limitation, the following language:
The language contained in Exhibit C to this Special Warranty Deed including,
without limitation, the following language:
Page 59 of 146
Page 60 of 146
Page 61 of 146
. . .
Page 62 of 146
. . .
Page 63 of 146
Page 64 of 146
n) The language contained in the Special Warranty Deed dated April 26, 2000
between Stardial Investments Company and Casa Marina III, L.L.C. including,
without limitation, the following language:
Page 65 of 146
Page 66 of 146
The language contained in Exhibit C to this Special Warranty Deed including, without
limitation, the following language:
Page 67 of 146
Page 68 of 146
The language contained in Exhibit D to this Special Warranty Deed including, without
limitation, the following language:
Page 69 of 146
o) The language contained in the Indenture dated May 29, 1981 between Estero Bay
Development Corporation and Harbour Pointe, Inc. including, without limitation,
the following language:
Page 70 of 146
p) The language contained in the Special Warranty Deed dated June 18, 1992
between Stardial Investments Company and Estero Island Partners. including,
without limitation, the following language
Page 71 of 146
Page 72 of 146
The language contained in Exhibit C to this Special Warranty Deed including,
without limitation, the following language:
Page 73 of 146
q) The language contained in the Special Warranty Deed dated August 11, 1992
between Estero Island Partners and Hibiscus Pointe at Bay Beach, Ltd. including,
without limitation, the following language:
Page 74 of 146
r) The language contained in the Special Warranty Deed dated December 16, 1992
between Stardial Investments Company and Hibiscus Pointe at Bay Beach, Ltd.
including, without limitation, the following language:
Page 75 of 146
Page 76 of 146
The language contained in Exhibit C to this Special Warranty Deed including,
without limitation, the following language:
Page 77 of 146
s) The language contained in the Special Warranty Deed dated December 1, 1993
between Stardial Investments Company and Hibiscus Pointe at Bay Beach, Ltd.
including, without limitation, the following language:
Page 78 of 146
Page 79 of 146
The language contained in Exhibit C to this Special Warranty Deed including, without
limitation, the following language:
Page 80 of 146
t) The language contained in the Special Warranty Deed dated February 24, 1994
between Stardial Investments Company and Hibiscus Pointe at Bay Beach, Ltd.
including, without limitation, the following language:
Page 81 of 146
Page 82 of 146
The language contained in Exhibit C to this Special Warranty Deed including, without
limitation, the following language:
Page 83 of 146
u) The language contained in the Special Warranty Deed dated August 26, 1994
between Stardial Investments Company and Hibiscus Pointe at Bay Beach, Ltd.
including, without limitation, the following language:
Page 84 of 146
Page 85 of 146
The language contained in Exhibit C to this Special Warranty Deed including,
without limitation, the following language:
Page 86 of 146
v) The language contained in the Special Warranty Deed dated November 18, 1994
between Stardial Investments Company and Hibiscus Pointe at Bay Beach, Ltd.
including, without limitation, the following language:
Page 87 of 146
Page 88 of 146
The language contained in Exhibit C to this Special Warranty Deed including, without
limitation, the following language:
Page 89 of 146
w) The language contained in the Special Warranty Deed dated March 2, 1995
between Stardial Investments Company and Hibiscus Pointe at Bay Beach, Ltd.
including, without limitation, the following language:
Page 90 of 146
Page 91 of 146
The language contained in Exhibit C to this Special Warranty Deed including,
without limitation, the following language:
Page 92 of 146
x) The language contained in the Special Warranty Deed dated March 4, 2002
between Stardial Investments Company and Bay Beach VII, LLC including,
without limitation, the following language:
Page 93 of 146
Page 94 of 146
Page 95 of 146
Page 96 of 146
The language contained in Exhibit C to this Special Warranty Deed including,
without limitation, the following language:
Page 97 of 146
The language contained in Exhibit E to this Special Warranty Deed including,
without limitation, the following language:
Page 98 of 146
Page 99 of 146
y) The language contained in the Warranty Deed dated December 7, 2004 between
Bay Beach VII, LLC and Bay Beach VII, LLC including, without limitation, the
following language:
z) The language contained in the Warranty Deed dated April 20, 2005 between Bay
Beach VI, LLC and Bay Beach VII, LLC including, without limitation, the
following language:
Page 100 of 146
aa) The language contained in the Warranty Deed dated September 5, 2006 between
Bay Beach VII, LLC and Manatee Bay Group, Inc. including, without limitation,
the following language:
Page 101 of 146
bb) The language contained in the Warranty Deed dated January 27, 1986 between
Stardial Investments Company and Royal Pelican Development, Inc. including,
without limitation, the following language:
Page 102 of 146
The language contained in Exhibit C to this Warranty Deed including, without
limitation, the following language:
The language contained in Exhibit E to this Warranty Deed including, without
limitation, the following language:
Page 103 of 146
Page 104 of 146
cc) The language contained in the Warranty Deed dated September 18, 1986 between
Stardial Investments Company and Royal Pelican Development, Inc. including,
without limitation, the following language:
Page 105 of 146
dd) The language contained in the Warranty Deed dated March 20, 1987 between
Stardial Investments Company and Royal Pelican Development, Inc. including,
without limitation, the following language:
Page 106 of 146
Page 107 of 146
ee) The language contained in the Warranty Deed dated April 20, 1987 between
Stardial Investments Company and Royal Pelican Development, Inc. including,
without limitation, the following language:
Page 108 of 146
Page 109 of 146
ff) The language contained in the Warranty Deed dated January 19, 1988 between
Stardial Investments Company and Royal Pelican Development, Inc. including,
without limitation, the following language:
Page 110 of 146
Page 111 of 146
gg) The language contained in the Warranty Deed dated January 19, 1988 between
Stardial Investments Company and Royal Pelican Development, Inc. including,
without limitation, the following language:
Page 112 of 146
Page 113 of 146
hh) The language contained in the Warranty Deed dated March 23, 1988 between
Stardial Investments Company and Royal Pelican Development, Inc. including,
without limitation, the following language:
Page 114 of 146
Page 115 of 146
ii) The language contained in the Warranty Deed dated June 5, 1988 between
Stardial Investments Company and Royal Pelican Development, Inc. including,
without limitation, the following language:
Page 116 of 146
jj) The language contained in the Quit Claim Deed dated May 11, 1981 between Bay
Beach Venture Limited, Inc. and Estero Bay Development Corporation, in favor
of The Palms of Bay Beach Condominium Association, Inc. including, without
limitation, the following language:
kk) The language contained in the Special Warranty Deed dated March 4, 2002
between Stardial Investments Company and Bay Beach VIII, LLC including,
without limitation, the following language:
Page 117 of 146
Page 118 of 146
Page 119 of 146
The language contained in Exhibit C to this Special Warranty Deed including,
without limitation, the following language:
Page 120 of 146
Page 121 of 146
The language contained in Exhibit E to this Special Warranty Deed including,
without limitation, the following language:
Page 122 of 146
ll) The language contained in the Plan of Merger dated December 9, 2004 between
Bay Beach VIII, LLC and Sunset Gulf L.L.C. including, without limitation, the
following language:
Page 123 of 146
mm) The language contained in the Cost Sharing Agreement including, without
limitation, the following language:
Page 124 of 146
Page 125 of 146
Page 126 of 146
In addition, all language and information contained in Exhibits A and B to the
Cost Sharing Agreement.
nn) The language contained in the Declaration of Estero Bay Development
Corporation Improvements, Restrictions, Conditions and Covenants dated
February 23, 1976 and all amendments thereto (including, without limitation, the
Amended and Restated Articles I through IX dated January 19, 1999) and all
addenda thereto executed by any entity as part of the purchase of any of the
residential property in Bay Beach as attached to the deeds evidencing such
purchases or otherwise including, without limitation, the following language:
Page 127 of 146
Page 128 of 146
. . .
Page 129 of 146
Page 130 of 146
Page 131 of 146
. . .
. . .
Page 132 of 146
. . .
Page 133 of 146
The language contained in Exhibit I to this Declaration including, without
limitation, the following language:
Page 134 of 146
Page 135 of 146
Page 136 of 146
Page 137 of 146
5. Please state and describe with specificity the payments that you have made for
any maintenance, liability, or operational expenses associated with the Golf Course Property or
the System.
RESPONSE: The Responding Parties object to this interrogatory because the Durpos
have refused to provide similar information requested of them in similar interrogatories. See,
e.g., Responses 10, 11 and 17 of Durpo, Jr. to First Set of Interrogatories. Unless and until the
Durpos withdraw those objections and respond to the interrogatories propounded on them, the
Responding Parties object to responding to similar interrogatories. In addition, similar to the
Durpos’ responses, the Responding Parties refer Durpo to documents being produced in response
to the Durpos’ documents requests.
6. Please state and describe with specificity all language in any agreement signed by
the Durpos and you that gives you permission and/or a legal right to use the System or the Golf
Course Property for stormwater and surface water management.
RESPONSE: As Durpo is aware, there is no agreement that has been signed by both the
Durpos and the Responding Parties. This, of course, has no relevance to the existence of legal
rights related to the System, the use of the System and the legal rights to allow stormwater and
surface water to drain through the System and the Golf Course Property.
7. Please state and describe with specificity all language in the Cost Share
Agreement stating that you have a right to use the System.
RESPONSE: The Responding Parties refer Durpo to the portion of Response 4 above
related to the Cost Sharing Agreement.
Page 138 of 146
8. Please state and describe with specificity all steps taken to record the Cost Share
Agreement in the public records of Lee County, Florida.
RESPONSE: The Cost Sharing Agreement was signed by Joe Bishop, President of
Estero Bay Improvement Association, Inc., on February 14, 2005. Original signature copies of
the Cost Sharing Agreement with Mr. Bishop’s signature were then forwarded to Bay Beach
Golf Club, Inc. for execution and recording. Murray Flood signed the Cost Sharing Agreement
on February 22, 2005. Immediately thereafter, Estero Bay Improvement Association, Inc. and
Bay Beach Golf Club, Inc. began performing their respective obligations under the Cost Sharing
Agreement. Years later, in the context of the present dispute with the Durpos, Estero Bay
Improvement Association, Inc. learned that the Cost Sharing Agreement had erroneously never
been recorded. At that time, Estero Bay Improvement Association, Inc. began searching for an
original signature copy of the Cost Sharing Agreement to record, but was unable to find such a
copy. As part of its review of documents in the present litigation, Estero Bay Improvement
Association, Inc. found an original signature copy of the Cost Sharing Agreement in late
September, 2014 and had that copy recorded on October 1, 2014.
9. Please state and describe with specificity the names and addresses of the
subscribing witnesses to the Cost Share Agreement.
RESPONSE: The Responding Parties are without knowledge of who witnessed the
signature of Murray Flood, President of Bay Beach Golf Club, Inc., other than what appears on
the document itself. The names of the witnesses to the signature of Estero Bay Improvement,
Inc.’s then-President, Joseph Bishop, are Heather Wightman and Michele McDougal. The
Responding Parties do not have addresses for these individuals.
Page 139 of 146
10. Please state and describe with specificity any attempts to notify the Durpos of the
existence of the Cost Share Agreement and/or your use of the System, including the dates of
each attempt.
RESPONSE: The Responding Parties object to this interrogatory as being overbroad,
vague and unduly burdensome because it is unlimited and non-specific as to the time frame that
is at issue in the interrogatory. If Durpo will specify the time frame for this interrogatory, the
Responding Parties will consider supplementing this response.
11. Please state and describe with specificity all language in the conveyances,
attached to the Counterclaim as Composite Exhibits A-Q as described in paragraph 121 of the
Counterclaim, which you believe creates an implied easement or any other interest that gives you
a legal right to use the System.
RESPONSE: The Responding Parties will answer this Interrogatory with respect to the
conveyances related to them. The Responding Parties refer Durpo to the portion of Response 4
above that addresses those conveyances.
12. Please state and describe with specificity any steps taken to convert the Permit
from a construction permit to an operational permit.
RESPONSE: The Responding Parties object to this interrogatory as being overbroad,
vague and unduly burdensome because of the way that Durpo has defined the Permit. If Durpo
will clarify what permit or permits he is asking about, the Responding Parties will consider
supplementing this response.
13. Please state and describe with specificity the language in any document
supporting that the Permit was converted from a constructional permit to an operational permit.
Page 140 of 146
RESPONSE: The Responding Parties object to this interrogatory as being overbroad,
vague and unduly burdensome because of the way that Durpo has defined the Permit. If Durpo
will clarify what permit or permits he is asking about, the Responding Parties will consider
supplementing this response.
14. Please state and describe with specificity the date that the Permit expired, or
explain why the Permit is still effective.
RESPONSE: The Responding Parties object to this interrogatory as being overbroad,
vague and unduly burdensome because of the way that Durpo has defined the Permit. If Durpo
will clarify what permit or permits he is asking about, the Responding Parties will consider
supplementing this response.
15. Please state and describe with specificity how the Permit gives you the right to
use the System when the Permit has not been converted to an operational permit and is no longer
effective.
RESPONSE: The Responding Parties object to this interrogatory as being overbroad,
vague and unduly burdensome because of the way that Durpo has defined the Permit. If Durpo
will clarify what permit or permits he is asking about, the Responding Parties will consider
supplementing this response.
16. Please list all facts in your possession that the Durpos had knowledge of the
Associations’ use of the Golf Course Property and/or System for its stormwater and surface
water discharge.
RESPONSE: The Responding Parties object to this interrogatory as being overbroad,
vague and unduly burdensome because it is unlimited and non-specific as to the time frame that
is at issue in the interrogatory. Without waiving this objection and without purporting to list all
Page 141 of 146
facts, the Responding Parties respond as follows: The Durpos acquired the Golf Course Property
from Bay Beach Golf Club, Inc. (“BBGC”), via the Warranty Deed dated October 31, 2005,
executed by Bay Beach Golf Club, Inc., in favor of Clark L. (Chip) Durpo, Jr. and Clark L.
Durpo, recorded on November 9, 2005, as Instrument #2005000111490, and re-recorded on
November 29, 2005, as Instrument #2005000140921, both in the Public Records of Lee County,
Florida (the “BBGC Deed”). Pursuant to the plain terms of the BBGC Deed, the sale of the Golf
Course Property by BBGC to the Durpos was subject to all easements, restrictions, reservations
and limitations of record. BBGC had acquired the Golf Course Property from Stardial, via the
Special Warranty Deed dated January 17, 2003, executed by Stardial Investments Company, in
favor of Bay Beach Golf Club, Inc., recorded on January 22, 2003, as Instrument #5691237 in
O.R. Book 3829 at Page 4302 in the Public Records of Lee County, Florida (the “Stardial
Deed”). Pursuant to the plain terms of the Stardial Deed, the sale of the Golf Course Property by
Stardial to BBGC was subject to the permitted exceptions on Exhibit B to the Stardial Deed. The
permitted exceptions included, without limitation, “[a]ll easements within the boundaries of the
land shown on the survey prepared by Agnoli, Barber & Brundage, Inc., dated May 8, 2002.”
The survey prepared by Agnoli, Barber & Brundage, Inc., dated May 8, 2002 and referenced in
the Stardial Deed (the “2002 Agnoli Barber Survey”) is incorporated by reference into the
Stardial Deed. The 2002 Agnoli Barber Survey shows proposed drainage easements on the Golf
Course Property. The Golf Course Property is the servient estate (i.e., the land burdened by the
easements) with respect to these proposed drainage easements. The dominant estates (i.e., the
lands benefiting from the easements) with respect to these proposed drainage easements are the
properties owned by Estero Bay Improvement Association, Inc. (“EBIA”), Bayside Master
Page 142 of 146
Association, Inc. (“BMA”), Waterside Dock Association (“WDA”) and each association named
as a defendant to this matter (“Defendant Associations”).
The Durpos took title to the Golf Course Property subject to the interests, easements,
restrictions, limitations, encumbrances and other muniments of title of which they had notice.
The 2002 Agnoli Barber Survey was revised on October 28, 2005, just days prior to the Durpos’
acquisition of the Golf Course Property. This revised survey will be referred to as the “2005
Agnoli Barber Survey.” The drainage easements that were identified as “proposed drainage
easements” on the 2002 Agnoli Barber Survey are identified as “drainage easements (typical)”
on the 2005 Agnoli Barber Survey. The Durpos’ title insurance policy with respect to the Golf
Course Property (Chicago Title Insurance Company Policy No. 7210609-335590) specifically
references the 2005 Agnoli Barber Survey. The Durpos’ title insurance policy with respect to the
Golf Course Property (Chicago Title Insurance Company Policy No. 7210609-335590)
specifically excepts from its coverage all easements (including drainage easements) shown and
recited on the 2005 Agnoli Barber Survey. During their due diligence process before acquiring
the Golf Course Property, the Durpos prepared a document titled “Items Needed for Due
Diligence.” This “Items Needed for Due Diligence” document includes a specific reference to
the Cost Share Agreement and its contents. In addition, BBGC disclosed the System and the
Cost Share Agreement to the Durpos before the Durpos purchased the Golf Course Property.
BBGC also provided the Durpos with a copy of the Cost Share Agreement prior to the Durpos’
purchase of the Golf Course Property.
In light of the foregoing, prior to acquiring the Golf Course Property, the Durpos had
actual notice of the System and of the rights of EBIA, BMA, WDA and the Defendant
Associations against the Golf Course Property vis-à-vis the System and of the Associations’ use
Page 143 of 146
of the Golf Course Property. The Durpos are also charged with constructive notice of all
documents appearing in the chain of title to the Golf Course Property, all ordinances, resolutions,
filed plans, restrictions, permits and land use regulations governing the Golf Course Property,
and with such notice as is otherwise imputed by law. Furthermore, the Durpos are implicitly
charged with actual notice of such facts as could be ascertained from performance of any
reasonable inquiry suggested by the contents of any document for which they had actual or
constructive notice or any facts obtained in the course of conducting due diligence prior to
acquisition of the Golf Course Property. Without limitation, the Durpos had actual notice of the
System and all unrecorded rights appurtenant thereto because they knew about the Cost Share
Agreement and because physical evidence of the System is readily apparent upon a visible
inspection of the Golf Course Property. In addition, the Durpos had notice of the System and the
rights appurtenant thereto due to actual or constructive notice of the following documents,
without limitation, and the knowledge that could have been obtained from any reasonable inquiry
suggested thereby: Master Plan for Bay Beach; BBGC Deed; Stardial Deed; the deeds attached
as Exhibits A through P of the Amended Counterclaim; SFWMD Permit; Cost Share Agreement;
2002 Agnoli Barber Survey; 2005 Agnoli Barber Survey; Items Needed for Due Diligence. For
example, the System and SFWMD Permit are expressly referenced on the face of the Master
Plan for Bay Beach and the SFWMD Permit file contains extensive documentation regarding the
design and use of the System, including the 2002 Agnoli Barber Survey referenced in the
Stardial Deed and elsewhere. A reasonable inquiry into the physical evidence of the System or
the aforementioned documents would have otherwise led the Durpos’ discovery of the EBIA’s
role with respect to drainage in Bay Beach, the use of the System by EBIA, BMA, WDA and the
Defendant Associations and the legal bases therefor, among other things relevant to this action.
Page 144 of 146
Thus, the Durpos took title to the Golf Course Property with actual and/or constructive notice of,
and subject to, all rights in favor of EBIA, BMA, WDA and the Defendant Associations. In
addition, within months of acquiring the Golf Course Property, the Durpos requested from the
SFWMD that the SFWMD Permit be officially transferred from BBGC to the Durpos.
17. Please list all sums incurred by you in the construction of the System.
RESPONSE: The Responding Parties object to this interrogatory because the Durpos
have refused to provide similar information requested of them in similar interrogatories. See,
e.g., Responses 10, 11 and 17 of Durpo, Jr. to First Set of Interrogatories. Unless and until the
Durpos withdraw those objections and respond to the interrogatories propounded on them, the
Responding Parties object to responding to similar interrogatories. In addition, similar to the
Durpos’ responses, the Responding Parties refer Durpo to documents being produced in response
to the Durpos’ documents requests.
18. Please list all facts in your possession that the Durpos had knowledge of the Cost
Sharing Agreement prior to purchase the Golf Course Property.
RESPONSE: The Responding Parties respond as follows and reserve the right to
supplement this response: BBGC disclosed the System and the Cost Share Agreement to the
Durpos before the Durpos purchased the Golf Course Property. BBGC also provided the Durpos
with a copy of the Cost Share Agreement prior to the Durpos’ purchase of the Golf Course
Property. In addition, the Responding Parties point to the document labeled “Items Needed for
Due Diligence” (DURPO 248-254). In particular, the following language on that document:
Page 145 of 146
. . .
Page 146 of 146
Top Related