IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL · PDF filein the circuit court of the...

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”).

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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

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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

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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

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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.

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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.

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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.

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" 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.

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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.

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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:

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The language contained in Exhibit B to this Special Warranty Deed including,


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,


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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:

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In Exhibit A to this Special Warranty Deed, the following language:



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. . .

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d) The language contained in the Special Warranty Deed dated February 9, 1990

between Stardial Investments Company and Casa Marina Development Inc.


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The language contained in Exhibit A to this Special Warranty Deed including,


e) The language contained in the Special Warranty Deed dated September 9, 1993

between Stardial Investments Company and Casa Marina Development, Inc.


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f) The language contained in the Special Warranty Deed dated April 6, 1994



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g) The language contained in the Special Warranty Deed dated March 3, 1995



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h) The language contained in the Special Warranty Deed dated September 15, 1995



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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:

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. . .

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The language contained in Exhibit B to this Special Warrant Deed including,


. . .

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. . .

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j) The language contained in the Warranty Deed dated November 19, 2004 between

Bay Beach Development, LLC and Bay Beach Development Company, LLC


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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


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The language contained in Exhibit D to this Special Warranty Deed including,


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. . .

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l) The language contained in the Special Warranty Deed dated January 2, 1997

between Stardial Investments Company and Waterside at Bay Beach, Ltd.


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. . .

. . .

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m) The language contained in the Special Warranty Deed dated April 17, 2001

between Stardial Investments Company and Giles Development, L.L.C.


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The language contained in Exhibit C to this Special Warranty Deed including,


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. . .

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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,


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The language contained in Exhibit C to this Special Warranty Deed including, without


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The language contained in Exhibit D to this Special Warranty Deed including, without


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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:

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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

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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,


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r) The language contained in the Special Warranty Deed dated December 16, 1992

between Stardial Investments Company and Hibiscus Pointe at Bay Beach, Ltd.


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s) The language contained in the Special Warranty Deed dated December 1, 1993



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t) The language contained in the Special Warranty Deed dated February 24, 1994



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u) The language contained in the Special Warranty Deed dated August 26, 1994



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v) The language contained in the Special Warranty Deed dated November 18, 1994



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w) The language contained in the Special Warranty Deed dated March 2, 1995



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x) The language contained in the Special Warranty Deed dated March 4, 2002

between Stardial Investments Company and Bay Beach VII, LLC including,


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The language contained in Exhibit E to this Special Warranty Deed including,


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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:

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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:

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bb) The language contained in the Warranty Deed dated January 27, 1986 between

Stardial Investments Company and Royal Pelican Development, Inc. including,


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The language contained in Exhibit C to this Warranty Deed including, without


The language contained in Exhibit E to this Warranty Deed including, without


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cc) The language contained in the Warranty Deed dated September 18, 1986 between



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dd) The language contained in the Warranty Deed dated March 20, 1987 between



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ee) The language contained in the Warranty Deed dated April 20, 1987 between



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ff) The language contained in the Warranty Deed dated January 19, 1988 between



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gg) The language contained in the Warranty Deed dated January 19, 1988 between



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hh) The language contained in the Warranty Deed dated March 23, 1988 between



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ii) The language contained in the Warranty Deed dated June 5, 1988 between



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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


kk) The language contained in the Special Warranty Deed dated March 4, 2002

between Stardial Investments Company and Bay Beach VIII, LLC including,


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The language contained in Exhibit E to this Special Warranty Deed including,


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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:

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mm) The language contained in the Cost Sharing Agreement including, without


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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:

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. . .

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. . .

. . .

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. . .

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The language contained in Exhibit I to this Declaration including, without


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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.


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.

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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.

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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.


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.

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14. Please state and describe with specificity the date that the Permit expired, or

explain why the Permit is still effective.





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.





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.


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

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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

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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

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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.

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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.


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:

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. . .

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