IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT … · beach condominium association, inc., casa...
Transcript of IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT … · beach condominium association, inc., casa...
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Beasley & Demos, LLC, 2950 S.W. 27
th Avenue, Suite 100, Miami, FL 33133 – 305- 669-3131
IN THE CIRCUIT COURT OF THE 20TH
JUDICIAL CIRCUIT IN AND FOR LEE
COUNTY, FLORIDA
CIRCUIT CIVIL DIVISION
NO. 13 –CA-001057 CLARK L. DURPO, JR. and CLARK L. DURPO,
Plaintiffs, v. 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 POINTE 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., WATERSIDE MANATEE BAY HOLDINGS, LLC, all Florida corporations, and SOUTH FLORIDA WATER MANAGEMENT DISTRICT,
Defendants. _______________________________________/
ANSWER AND AFFIRMATIVE DEFENSES TO COUNTERCLAIM AND MOTION TO STRIKE CLAIM FOR ATTORNEYS’ FEES
Plaintiffs/Counter-Defendants, CLARK L. DURPO, JR. (“Chip Durpo”) and CLARK L.
DURPO (“Clark Durpo”), collectively (the “Durpos”) by and through their undersigned
Filing # 9528854 Electronically Filed 01/24/2014 03:10:34 PM
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Beasley & Demos, LLC, 2950 S.W. 27
th Avenue, Suite 100, Miami, FL 33133 – 305- 669-3131
counsel, hereby file their Answer and Affirmative Defenses to the Counterclaim filed by
Counter-Plaintiffs/Defendants: 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 POINTE 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
CONDOMINUM 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., (collectively “Counter-Plaintiffs” or “Defendant
Associations”) and state as follows:
JURISDICTION AND VENUE
1. The allegation in Paragraph 1 is admitted for jurisdiction purposes only.
2. The allegation in Paragraph 2 is admitted only to the extent that
jurisdiction and venue are proper in the Circuit Court in and for the Twentieth Judicial
Circuit, Lee County, Florida. The Durpos deny the remainder of the allegations
contained in Paragraph 2 and demand strict proof thereof.
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th Avenue, Suite 100, Miami, FL 33133 – 305- 669-3131
SUBSTANTIVE PARTIES
3. The Durpos admit the allegations as to this Counter-Plaintiff’s status as an
owners association governing common areas of a condominium community located on
certain real property in Lee County, Florida. The Durpos are without knowledge as to
the truth or falsity of the remaining allegations contained in Paragraph 3 and therefore
deny them. Further, the Durpos state the attached documents and publicly recorded
documents referenced within this paragraph speak for themselves and are the best
evidence of their terms and contents when read in their entirety and in context, and all
allegations, inferences and conclusions alleged that are inconsistent therewith are
denied.
4. The Durpos admit the allegations as to this Counter-Plaintiff’s status as an
owners association governing common areas of a condominium community located on
certain real property in Lee County, Florida. The Durpos are without knowledge as to
the truth or falsity of the remaining allegations contained in Paragraph 4 and therefore
deny them. Further, the Durpos state the attached documents and publicly recorded
documents referenced within this paragraph speak for themselves and are the best
evidence of their terms and contents when read in their entirety and in context, and all
allegations, inferences and conclusions alleged that are inconsistent therewith are
denied.
5. The Durpos admit the allegations as to this Counter-Plaintiff’s status as an
owners association governing common areas of a condominium community located on
certain real property in Lee County, Florida. The Durpos are without knowledge as to
the truth or falsity of the remaining allegations contained in Paragraph 5 and therefore
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deny them. Further, the Durpos state the attached documents and publicly recorded
documents referenced within this paragraph speak for themselves and are the best
evidence of their terms and contents when read in their entirety and in context, and all
allegations, inferences and conclusions alleged that are inconsistent therewith are
denied.
6. The Durpos admit the allegations as to this Counter-Plaintiff’s status as an
owners association governing common areas of a condominium community located on
certain real property in Lee County, Florida. The Durpos are without knowledge as to
the truth or falsity of the remaining allegations contained in Paragraph 6 and therefore
deny them. Further, the Durpos state the attached documents and publicly recorded
documents referenced within this paragraph speak for themselves and are the best
evidence of their terms and contents when read in their entirety and in context, and all
allegations, inferences and conclusions alleged that are inconsistent therewith are
denied.
7. The Durpos admit the allegations as to this Counter-Plaintiff’s status as an
owners association governing common areas of a condominium community located on
certain real property in Lee County, Florida. The Durpos are without knowledge as to
the truth or falsity of the remaining allegations contained in Paragraph 7 and therefore
deny them. Further, the Durpos state the attached documents and publicly recorded
documents referenced within this paragraph speak for themselves and are the best
evidence of their terms and contents when read in their entirety and in context, and all
allegations, inferences and conclusions alleged that are inconsistent therewith are
denied.
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8. The Durpos admit the allegations as to this Counter-Plaintiff’s status as an
owners association governing common areas of a condominium community located on
certain real property in Lee County, Florida. The Durpos are without knowledge as to
the truth or falsity of the remaining allegations contained in Paragraph 8 and therefore
deny them. Further, the Durpos state the attached documents and publicly recorded
documents referenced within this paragraph speak for themselves and are the best
evidence of their terms and contents when read in their entirety and in context, and all
allegations, inferences and conclusions alleged that are inconsistent therewith are
denied.
9. The Durpos admit the allegations as to this Counter-Plaintiff’s status as an
owners association governing common areas of a condominium community located on
certain real property in Lee County, Florida. The Durpos are without knowledge as to
the truth or falsity of the remaining allegations contained in Paragraph 9 and therefore
deny them. Further, the Durpos state the attached documents and publicly recorded
documents referenced within this paragraph speak for themselves and are the best
evidence of their terms and contents when read in their entirety and in context, and all
allegations, inferences and conclusions alleged that are inconsistent therewith are
denied.
10. The Durpos admit the allegations as to this Counter-Plaintiff’s status as an
owners association governing common areas of a condominium community located on
certain real property in Lee County, Florida. The Durpos are without knowledge as to
the truth or falsity of the remaining allegations contained in Paragraph 10 and therefore
deny them. Further, the Durpos state the attached documents and publicly recorded
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th Avenue, Suite 100, Miami, FL 33133 – 305- 669-3131
documents referenced within this paragraph speak for themselves and are the best
evidence of their terms and contents when read in their entirety and in context, and all
allegations, inferences and conclusions alleged that are inconsistent therewith are
denied.
11. The Durpos admit the allegations as to this Counter-Plaintiff’s status as an
owners association governing common areas of a condominium community located on
certain real property in Lee County, Florida. The Durpos are without knowledge as to
the truth or falsity of the remaining allegations contained in Paragraph 11 and therefore
deny them. Further, the Durpos state the attached documents and publicly recorded
documents referenced within this paragraph speak for themselves and are the best
evidence of their terms and contents when read in their entirety and in context, and all
allegations, inferences and conclusions alleged that are inconsistent therewith are
denied.
12. The Durpos admit the allegations as to this Counter-Plaintiff’s status as an
owners association governing common areas of a condominium community located on
certain real property in Lee County, Florida. The Durpos are without knowledge as to
the truth or falsity of the remaining allegations contained in Paragraph 12 and therefore
deny them. Further, the Durpos state the attached documents and publicly recorded
documents referenced within this paragraph speak for themselves and are the best
evidence of their terms and contents when read in their entirety and in context, and all
allegations, inferences and conclusions alleged that are inconsistent therewith are
denied.
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13. The Durpos admit the allegations as to this Counter-Plaintiff’s status as an
owners association governing common areas of a condominium community located on
certain real property in Lee County, Florida. The Durpos are without knowledge as to
the truth or falsity of the remaining allegations contained in Paragraph 13 and therefore
deny them. Further, the Durpos state the attached documents and publicly recorded
documents referenced within this paragraph speak for themselves and are the best
evidence of their terms and contents when read in their entirety and in context, and all
allegations, inferences and conclusions alleged that are inconsistent therewith are
denied.
14. The Durpos admit the allegations as to this Counter-Plaintiff’s status as an
owners association governing common areas of a condominium community located on
certain real property in Lee County, Florida. The Durpos are without knowledge as to
the truth or falsity of the remaining allegations contained in Paragraph 14 and therefore
deny them. Further, the Durpos state the attached documents and publicly recorded
documents referenced within this paragraph speak for themselves and are the best
evidence of their terms and contents when read in their entirety and in context, and all
allegations, inferences and conclusions alleged that are inconsistent therewith are
denied.
15. The Durpos admit the allegations as to this Counter-Plaintiff’s status as an
owners association governing common areas of a condominium community located on
certain real property in Lee County, Florida. The Durpos are without knowledge as to
the truth or falsity of the remaining allegations contained in Paragraph 15 and therefore
deny them. Further, the Durpos state the attached documents and publicly recorded
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Beasley & Demos, LLC, 2950 S.W. 27
th Avenue, Suite 100, Miami, FL 33133 – 305- 669-3131
documents referenced within this paragraph speak for themselves and are the best
evidence of their terms and contents when read in their entirety and in context, and all
allegations, inferences and conclusions alleged that are inconsistent therewith are
denied.
16. The Durpos admit the allegations as to this Counter-Plaintiff’s status as an
owners association governing common areas of a condominium community located on
certain real property in Lee County, Florida. The Durpos are without knowledge as to
the truth or falsity of the remaining allegations contained in Paragraph 16 and therefore
deny them. Further, the Durpos state the attached documents and publicly recorded
documents referenced within this paragraph speak for themselves and are the best
evidence of their terms and contents when read in their entirety and in context, and all
allegations, inferences and conclusions alleged that are inconsistent therewith are
denied.
17. The Durpos admit the allegations as to this Counter-Plaintiff’s status as an
owners association governing common areas of a condominium community located on
certain real property in Lee County, Florida. The Durpos are without knowledge as to
the truth or falsity of the remaining allegations contained in Paragraph 17 and therefore
deny them. Further, the Durpos state the attached documents and publicly recorded
documents referenced within this paragraph speak for themselves and are the best
evidence of their terms and contents when read in their entirety and in context, and all
allegations, inferences and conclusions alleged that are inconsistent therewith are
denied.
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Beasley & Demos, LLC, 2950 S.W. 27
th Avenue, Suite 100, Miami, FL 33133 – 305- 669-3131
18. The Durpos admit the allegations as to this Counter-Plaintiff’s status as an
owners association governing common areas of a condominium community located on
certain real property in Lee County, Florida. The Durpos are without knowledge as to
the truth or falsity of the remaining allegations contained in Paragraph 18 and therefore
deny them. Further, the Durpos state the attached documents and publicly recorded
documents referenced within this paragraph speak for themselves and are the best
evidence of their terms and contents when read in their entirety and in context, and all
allegations, inferences and conclusions alleged that are inconsistent therewith are
denied.
19. No allegations are contained within Paragraph 19, and therefore, no
answer is required.
20. The Durpos admit the allegation in Paragraph 20.
21. The Durpos admit the allegation in Paragraph 21.
GENERAL ALLEGATIONS
22. The Durpos are without knowledge as to the truth or falsity of the
allegations contained in Paragraph 22 and therefore deny them.
23. The Durpos admit the allegations in the first two sentences of Paragraph
23. The Durpos further state that the attached document speaks for itself and is the best
evidence of its terms and contents when read in its entirety and in context, and all
allegations, inferences and conclusions alleged that are inconsistent therewith are
denied.
24. The Durpos admit that the Counter-Plaintiffs are condominium
associations responsible for various aspects of the condominium properties of their
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th Avenue, Suite 100, Miami, FL 33133 – 305- 669-3131
respective condominium communities located within Bay Beach near the Golf Course
Property.
25. The Durpos admit they own the property defined by Counter-Plaintiffs as
the “Golf Course Property.”
26. The Durpos admit they acquired the Golf Course Property from Bay Beach
Golf Club, Inc. on or about October 31, 2005 by Warranty Deed. The Durpos state that
the documents attached as Composite Exhibit T speak for themselves and are the best
evidence of their terms and contents when read in their entirety and in context, and all
allegations, inferences and conclusions alleged that are inconsistent therewith are
denied.
27. The Durpos are without knowledge as to whether Exhibit U is a true and
correct copy of what it purports to be, and therefore deny this allegation. To the extend
Exhibit U is a true and correct copy of what it purports to be, the Durpos state the
attached document speaks for itself and is the best evidence of its terms and contents
when read in its entirety and in context, and all allegations, inferences and conclusions
alleged that are inconsistent therewith are denied.
28. The Durpos are without knowledge as to the truth or falsity of the
allegations contained in Paragraph 28 and therefore deny them. Further, the Durpos
state the recorded documents referenced within this paragraph, and which are not
attached, speak for themselves and are the best evidence of their terms and contents
when read in their entirety and in context. All allegations, inferences and conclusions
within Paragraph 28 and throughout the Counterclaim allegedly relying on said
documents, but that are inconsistent therewith, are denied.
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Beasley & Demos, LLC, 2950 S.W. 27
th Avenue, Suite 100, Miami, FL 33133 – 305- 669-3131
29. The Durpos are without knowledge as to the truth or falsity of the
allegations contained in Paragraph 29 and therefore deny them.
30. The Durpos are without knowledge as to the truth or falsity of the
allegations contained in Paragraph 30 and therefore deny them. Further, the Durpos
state the recorded documents referenced within this paragraph, and which are not
attached, speak for themselves and are the best evidence of their terms and contents
when read in their entirety and in context. All allegations, inferences and conclusions
within Paragraph 28 and throughout the Counterclaim allegedly relying on said
documents, but that are inconsistent therewith, are denied.
31. The Durpos are without knowledge as to the truth or falsity of the
allegations contained in Paragraph 31 and therefore deny them. Further, to the extent
the allegations in Paragraph 31 may rely on the Exhibits attached to the Counterclaim,
the Durpos state the attached documents speak for themselves and are the best
evidence of their terms and contents when read in their entirety and in context. All
allegations, inferences and conclusions within Paragraph 31 and throughout the
Counterclaim allegedly relying on said documents, but that are inconsistent therewith,
are denied.
32. The Durpos admit that under the master concept plan, the residential
areas within the DRI and the Golf Course Property were to be served by a unified
surface water management system (the “System”) that was to be developed and to be
operated in accordance with permits issued by the South Florida Water Management
District. The Durpos deny any remaining allegation, or portion thereof, in Paragraph 32
inconsistent with this admission, and deny any implication that such permits or the
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th Avenue, Suite 100, Miami, FL 33133 – 305- 669-3131
System could or did grant or provide property rights, land use rights or privileges to the
Counter-Plaintiffs absent the required recorded conveyances and agreement between
the Golf Course Property owners and the Defendant Associations.
33. The Durpos admit that under the master concept plan, the residential
areas within the DRI and the Golf Course Property were to be served by a unified
surface water management system (the “System”) that was to be developed and to be
operated in accordance with permits issued by the South Florida Water Management
District. The Durpos deny any implication that they were aware of this system at the
time of purchasing the Golf Course Property and deny any remaining allegation, or
portion thereof, in Paragraph 33 inconsistent with this admission. Further, the Durpos
state the documents in the referenced Composite Exhibit R speak for themselves and
are the best evidence of their terms and contents when read in their entirety and in
context. All allegations, inferences and conclusions within Paragraph 31 and throughout
the Counterclaim allegedly relying on said documents, but that are inconsistent
therewith, are denied, including any and all implication that such permits or the System
could or did grant or provide property rights, land use rights or privileges to the Counter-
Plaintiffs absent the required recorded conveyances and agreement between the Golf
Course Property owners and the Defendant Associations.
34. The Durpos deny the allegations contained in Paragraph 34 and demand
strict proof thereof.
35. The Durpos state the attached Composite Exhibit R speaks for itself and is
the best evidence of its terms and contents when read in its entirety and in context, and
all allegations, inferences and conclusions alleged that are inconsistent therewith are
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denied. The Durpos deny that the Master Plan contained in Composite Exhibit R makes
any reference to the existence of any drainage easements on the Golf Course Property.
36. The Durpos are without knowledge as to the truth or falsity of the
allegations contained in Paragraph 36 with regard to the actions taken by Stardial and
as to whether Exhibit W is a true and correct copy of what it purports to be, and
therefore deny them. Further, the Durpos state the referenced permit attached as
Exhibit V speaks for itself and is the best evidence of its terms and contents when read
in its entirety and in context. All allegations, inferences and conclusions alleged in
Paragraph 36 or throughout the Counterclaim that are inconsistent therewith, or that are
based on an incomplete copy of said permit (as modified) and its related application
numbers, are denied. It is further specifically denied that such permits granted the
Counter-Plaintiffs or other person any land use rights, property rights or privileges in the
Golf Course Property, as is made clear by the language in the referenced permits.
37. The Durpos deny the allegations contained in Paragraph 37. The
SFWMD Permit never required the Golf Course Property owners to the sole bearers of
the cost and responsibility of operating and maintaining the System. Operation of the
System within the residential areas was to be the responsibility of the Defendant
Associations. Further, the permits at issue required there to be a binding agreement
between each individual Defendant Association as permittee and the Golf Course
Property owners to pay for the use, operation and maintenance of the System, and the
permits and correspondence from the SFWMD clearly state no land use or property
rights are provided to the permittees by the permits.
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th Avenue, Suite 100, Miami, FL 33133 – 305- 669-3131
38. The Durpos are without knowledge as to the truth or falsity of the
allegations contained in Paragraph 38 and therefore deny them.
39. The Durpos are without knowledge as to the truth or falsity of the
allegations contained in Paragraph 39 and therefore deny them. Further, the Durpos
state that the permit and modifications referenced within this paragraph speak for
themselves and are the best evidence of their terms and contents when read in their
entirety and in context, and all allegations, inferences and conclusions alleged that are
inconsistent therewith are denied. The Durpos further state that the SFWMD has stated
that the Defendant Associations failed to timely comply with, and operate, their parts of
the System in accordance with their permits, and, in fact, violated the conditions and
requirements set forth therein.
40. The Durpos are without knowledge as to the truth or falsity of the
allegations contained in Paragraph 40 and therefore deny them. The allegations relate
to events and parties that predate the Durpos’ purchase of the Golf Course Property.
41. The Durpos are without knowledge as to the truth or falsity of the
allegations contained in Paragraph 41 and therefore deny them. The allegations relate
to events and parties that predate the Durpos’ purchase of the Golf Course Property.
Further, the Durpos state that Composite Exhibit V speaks for itself and is the best
evidence of its terms and contents when read in its entirety and in context, and all
allegations, inferences and conclusions alleged that are inconsistent therewith, are
denied.
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th Avenue, Suite 100, Miami, FL 33133 – 305- 669-3131
42. The Durpos are without knowledge as to the truth or falsity of the
allegations contained in Paragraph 42 and therefore deny them. The allegations relate
to events and parties that predate the Durpos’ purchase of the Golf Course Property.
43. The Durpos are without knowledge as to the truth or falsity of the
allegations contained in Paragraph 43 and therefore deny them. The allegations relate
to events and parties that predate the Durpos’ purchase of the Golf Course Property.
44. The Durpos are without knowledge as to the truth or falsity of the
allegations contained in Paragraph 44 and therefore deny them. The allegations relate
to events and parties that predate the Durpos’ purchase of the Golf Course Property.
Further, the Durpos are without knowledge as to whether Exhibit X is a true and correct
copy of what it purports to be, and therefore deny this allegation. However, to the
extent Exhibit X is a true and correct copy of what it purports to be, Exhibit X speaks for
itself and is the best evidence of its terms and contents when read in its entirety and in
context, and all allegations, inferences and conclusions alleged that are inconsistent
therewith, are denied. The Durpos further state that Exhibit X specifically states, among
other things, that successor owners of the property are not bound by the arbitration or
Decree and SFWMD has stated the award is insufficient to comply with the District’s
requirements for an agreement between, and drainage and access rights to the
respective properties of, the Defendant Associations and the Golf Course Property
owners.
45. The Durpos are without knowledge as to the truth or falsity of the
allegations contained in Paragraph 45 and therefore deny them. The allegations relate
to events and parties that predate the Durpos’ purchase of the Golf Course Property.
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th Avenue, Suite 100, Miami, FL 33133 – 305- 669-3131
Further, the Durpos state that Exhibit X speaks for itself and is the best evidence of its
terms and contents when read in its entirety and in context, and all allegations,
inferences and conclusions alleged that are inconsistent therewith, are denied. The
Durpos further state, as recognized in the Decree, it is not binding on successor owners
of the Golf Course Property, and it does not satisfy the SFWMD requirement for
operation of the System.
46. The Durpos are without knowledge as to the truth or falsity of the
allegations contained in Paragraph 46 and therefore deny them. The allegations relate
to events and parties that predate the Durpos’ purchase of the Golf Course Property.
Further, the Durpos state that Exhibit X speaks for itself and is the best evidence of its
terms and contents when read in its entirety and in context, and all allegations,
inferences and conclusions alleged that are inconsistent therewith, are denied. The
Durpos further state that the Decree and events resulting therefore are irrelevant as the
Durpos were not parties to the arbitration and are not, in any way, bound by it.
47. The Durpos are without knowledge as to the truth or falsity of the
allegations contained in Paragraph 47 and therefore deny them. The allegations relate
to events and parties that predate the Durpos’ purchase of the Golf Course Property.
Further, the Durpos state that exhibits regarding the sale of the Golf Course Property
speak for themselves and are the best evidence of their terms and contents when read
in their entirety and in context, and all allegations, inferences and conclusions alleged
that are inconsistent therewith, are denied.
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48. The Durpos are without knowledge as to the truth or falsity of the
allegations contained in Paragraph 48 and therefore deny them. The allegations relate
to events and parties that predate the Durpos’ purchase of the Golf Course Property.
49. The Durpos are without knowledge as to the truth or falsity of the
allegations contained in Paragraph 49 and therefore deny them. The allegations relate
to events and parties that predate the Durpos’ purchase of the Golf Course Property.
Further, the Durpos are without knowledge as to whether Exhibit Y is a true and correct
copy of what it purports to be, and therefore deny this allegation. However, to the
extent Exhibit Y is a true and correct copy of what it purports to be, the Durpos state
that Exhibit Y, to which the Defendant Associations and the Durpos are not parties,
speaks for itself and is the best evidence of its terms and contents when read in its
entirety and in context, and all allegations, inferences and conclusions alleged that are
inconsistent therewith, are denied. The Durpos further state, as recognized by Decree
and Cost Share Agreement, they do not bind future owners of the Golf Course Property,
do not run with the land and are irrelevant to the Durpos since the agreement was never
recorded in the Public Records of Lee County, which should have been done by the
Defendant Associations’ purported agent, EBIA, so as to put unsuspecting future
purchasers like the Durpos on notice of the issue.
The Durpos deny the unnumbered allegation-heading between paragraphs
49 and 50.
50. The Durpos admit they acquired the Golf Course Property on a date
subsequent to the purported date of execution of Exhibit Y and without notice of same.
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Beasley & Demos, LLC, 2950 S.W. 27
th Avenue, Suite 100, Miami, FL 33133 – 305- 669-3131
The Durpos deny the remaining allegations contained in Paragraph 50 and demand
strict proof thereof.
51. The Durpos deny the allegations contained in Paragraph 51 and demand
strict proof thereof. The Durpos state that the documents referenced are inconsistent
with these allegations in that, among other things, the deeds make no reference to the
SFWMD Permit or Master Plan, and the permits specifically state they do not provide
any property rights or privileges.
52. The Durpos state the allegations of Paragraph 52 regarding “constructive
notice” and “inquiry notice” are conclusions of law, as opposed to statements of fact,
and therefore no response is required. However, to the extent a response might be
required, the Durpos deny the allegations contained in Paragraph 52 and demand strict
proof thereof. The Durpos deny any remaining factual allegations contained in
Paragraph 52 and demand strict proof thereof.
53. The Durpos state the allegations of Paragraph 53 are conclusions of law,
as opposed to statements of fact, and therefore no response is required. However, to
the extent a response might be required, the Durpos deny the allegations contained in
Paragraph 53 and demand strict proof thereof.
54. The Durpos deny the allegations contained in Paragraph 54 and demand
strict proof thereof.
55. The Durpos state the allegations of Paragraph 55 are conclusions of law,
as opposed to statements of fact, and therefore no response is required. However, to
the extent a response might be required and as to any factual allegations in Paragraph
55, the Durpos deny the allegations contained therein and demand strict proof thereof.
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th Avenue, Suite 100, Miami, FL 33133 – 305- 669-3131
56. The Durpos deny the allegations contained in Paragraph 56 and demand
strict proof thereof.
57. The Durpos deny the allegations contained in Paragraph 57 and demand
strict proof thereof.
58. The Durpos are without knowledge as to the truth or falsity of the
allegations contained in Paragraph 58 as to the machinery utilized in the entire system
as defined in the Counterclaim, and therefore deny them. The Durpos admit they
currently hold the SFWMD Permit and are in control of the operation and maintenance
of the Golf Course Property.
59. The Durpos deny the allegations contained in Paragraph 59 and demand
strict proof thereof. The only request for an accounting from the Defendant
Associations or their representatives was made in the early part of 2013 upon learning
of the imminent suit being brought by the Durpos.
60. The Durpos deny the allegations contained in Paragraph 60 and demand
strict proof thereof. The only request for an accounting from the Defendant
Associations or their representatives was made in the early part of 2013 upon learning
of the imminent suit being brought by the Durpos.
61. The Durpos deny the allegations contained in Paragraph 61 and demand
strict proof thereof.
62. The Durpos deny the allegations contained in Paragraph 62 as phrased.
The Durpos further state that absent the Defendant Associations’ agreement to pay the
fair value for the use of the Durpos’ property and the service required to operate the
System, the Defendant Associations are in violation of their portions of the SFWMD
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Permit and the Durpos are entitled to terminate the Defendant Associations’ dumping of
water and resulting flooding of and continuing trespass on the Durpos’ property.
63. The Durpos deny the allegations contained in Paragraph 63 and demand
strict proof thereof.
GENERAL ALLEGATIONS REGARDING DECLARATORY RELIEF
64. The Durpos admit the existence of a bona fide, actual, present and
practical need for the Court’s declaration in this matter. The Durpos deny any remaining
factual allegations contained in Paragraph 64.
65. The Durpos admit the allegations contained in Paragraph 65.
66. The Durpos admit that the rights of the parties hereto are dependent upon
the Court’s judgment. The Durpos deny that the Counterclaim contains a complete
description of the facts upon which the Court will need to rely.
67. The Durpos admit the allegations contained in Paragraph 67.
68. The Durpos admit the allegations contained in Paragraph 68.
69. The Durpos admit the allegations contained in Paragraph 69.
COUNT I – DECLARATORY RELIEF (REASONABLE USE DOCTRINE)
70. The Durpos re-allege their answers to Paragraphs 1-63 above, as if set
forth herein.
71. The Durpos admit the allegations contained in Paragraph 71.
72. The Durpos re-allege their answers to Paragraphs to 64-69 above, as if
set forth herein.
73. The Durpos are without knowledge as to the truth or falsity of the
allegations contained in Paragraph 73 and therefore deny them.
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74. The Durpos admit the allegations contained in Paragraph 74.
75. The Durpos state the allegations of Paragraph 75 are conclusions of law,
as opposed to statements of fact, and therefore no response is required. However, to
the extent a response might be required, the Durpos deny the allegations contained in
Paragraph 75 and demand strict proof thereof.
76. The Durpos admit that the improvements to the Defendant Associations’
properties have caused damage to the Golf Course Property. The Durpos state the
allegations of Paragraph 76 are conclusions of law, as opposed to statements of fact,
and therefore no response is required. However, to the extent a response might be
required, the Durpos deny the remaining allegations contained in Paragraph 76 and
demand strict proof thereof.
77. The Durpos deny the allegations contained in Paragraph 77 and demand
strict proof thereof.
78. The Durpos deny the allegations contained in Paragraph 78 and demand
strict proof thereof.
79. The Durpos are without knowledge as to the truth or falsity of the
allegations contained in Paragraph 79 and therefore deny them.
80. The Durpos admit that a declaratory judgment from the Court is necessary
to declare the respective rights of the parties. The Durpos deny the remaining
allegations contained in Paragraph 80 and demand strict proof thereof.
81. The Durpos deny the allegations contained in Paragraph 81.
The Durpos deny the Counter-Plaintiffs are entitled to any of the relief requested
in the prayer for relief following Paragraph 81, including subparts (a) – (e) therein.
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COUNT II – DECLARATORY RELIEF (IRREVOCABLE LICENSE)
82. The Durpos re-allege their answers to Paragraphs 1 – 63 above, as if set
forth herein.
83. The Durpos admit the allegations contained in Paragraph 83.
84. The Durpos re-allege their answers to Paragraphs 64 – 69 above, as if set
forth herein.
85. The Durpos state the allegations of Paragraph 85 are conclusions of law,
as opposed to statements of fact, and therefore no response is required. However, to
the extent a response might be required, the Durpos deny the allegations contained in
Paragraph 85 and demand strict proof thereof.
86. The Durpos state the allegations of Paragraph 86 are conclusions of law,
as opposed to statements of fact, and therefore no response is required. However, to
the extent a response might be required, the Durpos deny the allegations contained in
Paragraph 86 and demand strict proof thereof.
87. The Durpos deny the allegations contained in Paragraph 87 and demand
strict proof thereof.
88. The Durpos are without knowledge as to the truth or falsity of the
allegations contained in Paragraph 88 and therefore deny them.
89. The Durpos admit that a declaratory judgment from the Court is necessary
to declare the respective rights of the parties. The Durpos deny the remaining
allegations contained in Paragraph 89 and demand strict proof thereof.
90. The Durpos deny the allegations contained in Paragraph 90.
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The Durpos deny the Counter-Plaintiffs are entitled to the relief requested in the
prayer for relief following Paragraph 90, including subparts (a) – (e) therein.
COUNT III – DECLARATORY RELIEF (EXPRESS EASEMENT BY GRANT)
91. The Durpos re-allege their answers to Paragraphs 1 – 63 above, as if set
forth herein.
92. The Durpos admit the allegations contained Paragraph 92.
93. The Durpos re-allege their answers to Paragraphs 64 – 69 above, as if set
forth herein.
94. The Durpos are without knowledge as to the truth or falsity of the
allegations contained in Paragraph 94 and therefore deny them.
95. The Durpos state the Cost Share Agreement referenced in Paragraph 95,
to which the Defendant Associations and the Durpos are not parties, speaks for itself
and is the best evidence of its terms and contents when read in its entirety and in
context, and all allegations, inferences and conclusions alleged that are inconsistent
therewith are denied. The Durpos deny the Cost Share Agreement, to which they are
not parties, has any effect on them or binds any successor owner of the Golf Course
Property, including the Durpos.
96. The Durpos state the Cost Share Agreement referenced in Paragraph 96,
to which the Defendant Associations and the Durpos are not parties, speaks for itself
and is the best evidence of its terms and contents when read in its entirety and in
context, and all allegations, inferences and conclusions alleged that are inconsistent
therewith are denied. The Durpos deny the Cost share Agreement, to which they are
not a party, provides any easement rights to the Golf Course Property.
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97. The Durpos state the Cost Share Agreement referenced in Paragraph 97,
to which the Defendant Associations and the Durpos are not parties, speaks for itself
and is the best evidence of its terms and contents when read in its entirety and in
context, and all allegations, inferences and conclusions alleged that are inconsistent
therewith are denied. The Durpos deny the Cost share Agreement, to which they are
not a party, provides any easement rights to the Golf Course Property.
98. The Durpos state the Cost Share Agreement referenced in Paragraph 98,
to which the Defendant Associations and the Durpos are not parties, speaks for itself
and is the best evidence of its terms and contents when read in its entirety and in
context, and all allegations, inferences and conclusions alleged that are inconsistent
therewith are denied. Further, the Durpos state the allegations of Paragraph 98 contain
conclusions of law, as opposed to statements of fact, and therefore no response is
required. However, to the extent a response might be required, the Durpos deny the
remaining allegations contained in Paragraph 98 and demand strict proof thereof. The
Cost Share Agreement was not recorded and does not bind successor owners of the
property, such as the Durpos, who are not parties to the Cost Share Agreement and
had no notice of same.
99. The Durpos are without knowledge as to the truth or falsity of the
allegations contained in Paragraph 99 and therefore deny them. Further, to the extent
Exhibit Z is a true and correct copy of what it purports to be, the documents contained in
Composite Exhibit Z speak for themselves and are the best evidence of their terms and
contents when read in their entirety and in context, and all allegations, inferences and
conclusions alleged that are inconsistent therewith are denied.
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100. The Durpos state the allegations of Paragraph 100 regarding “constructive
notice” are conclusions of law, as opposed to statements of fact, and therefore no
response is required. However, to the extent a response might be required, the Durpos
deny the allegations contained in Paragraph 100 and demand strict proof thereof. The
Durpos deny any remaining factual allegations contained in Paragraph 100 and demand
strict proof thereof.
101. The Durpos are without knowledge as to the truth or falsity of the
allegations contained in Paragraph 101 and therefore deny them.
102. The Durpos admit that a declaratory judgment from the Court is necessary
to declare the respective rights of the parties. The Durpos deny the remaining
allegations contained in Paragraph 102 and demand strict proof thereof.
103. The Durpos deny the allegations contained in Paragraph 103 and are
moving to strike the claim for attorneys’ fees because there is no legally cognizable
basis for recovery against the Durpos.
The Durpos deny the Counter-Plaintiffs are entitled to the relief requested in the
prayer for relief following Paragraph 103, including subparts (a) – (e) therein.
COUNT IV – DECLARATORY RELIEF (EASEMENT BY NECESSITY)
104. The Durpos re-allege their answers to Paragraphs 1 – 63 above, as if set
forth herein.
105. The Durpos admit the allegations contained in Paragraph 105.
106. The Durpos re-allege their answers to Paragraphs 64 – 69 above, as if set
forth herein.
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107. The Durpos are without knowledge as to the truth or falsity of the
allegations contained in Paragraph 107 and therefore deny them.
108. The Durpos are without knowledge as to the truth or falsity of the
allegations contained in Paragraph 108 and therefore deny them.
109. The Durpos deny the allegations contained in Paragraph 109 and demand
strict proof thereof.
110. The Durpos deny the allegations contained in Paragraph 110 and demand
strict proof thereof.
111. The Durpos deny the allegations contained in Paragraph 111 and demand
strict proof thereof.
112. The Durpos deny the allegations contained in Paragraph 112 and demand
strict proof thereof.
113. The Durpos deny the allegations contained in Paragraph 113 and demand
strict proof thereof.
114. The Durpos are without knowledge as to the truth or falsity of the
allegations contained in Paragraph 114 and therefore deny them.
115. The Durpos admit that a declaratory judgment from the Court is necessary
to declare the respective rights of the parties. The Durpos deny the remaining
allegations contained in Paragraph 115 and demand strict proof thereof.
116. The Durpos deny the allegations contained in Paragraph 116.
The Durpos deny the Counter-Plaintiffs are entitled to the relief requested in the
prayer for relief following Paragraph 116, including subparts (a) – (e) therein.
COUNT V – DECLARATORY RELIEF (EASEMENT BY IMPLICATION)
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117. The Durpos re-allege their answers to Paragraphs 1 – 63 above, as if set
forth herein.
118. The Durpos admit the allegations contained in Paragraph 118.
119. The Durpos re-allege their answers to Paragraphs 64 – 69 above, as if set
forth herein.
120. The Durpos are without knowledge as to the truth or falsity of the
allegations contained in Paragraph 120 and therefore deny them.
121. The Durpos are without knowledge as to the truth or falsity of the
allegations contained in Paragraph 121 and therefore deny them. Further, the
documents contained in Exhibits A - Q speak for themselves and are the best evidence
of their terms and contents when read in their entirety and in context, and all allegations,
inferences and conclusions alleged that are inconsistent therewith are denied.
122. The Durpos deny the allegations contained in Paragraph 122 and demand
strict proof thereof.
123. The Durpos deny the allegations contained in Paragraph 123 and demand
strict proof thereof.
124. The Durpos deny the allegations contained in Paragraph 124 and demand
strict proof thereof.
125. The Durpos are without knowledge as to the truth or falsity of the
allegations contained in Paragraph 125 and therefore deny them.
126. The Durpos admit that a declaratory judgment from the Court is necessary
to declare the respective rights of the parties. The Durpos deny the remaining
allegations contained in Paragraph 126 and demand strict proof thereof.
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127. The Durpos deny the allegations contained in Paragraph 127.
The Durpos deny the Counter-Plaintiffs are entitled to the relief requested in the
prayer for relief following Paragraph 127, including subparts (a) – (e) therein.
COUNT VI – DECLARATORY RELIEF (MUTUAL DRAIN)
128. The Durpos re-allege their answers to Paragraphs 1 – 63 above, as if set
forth herein.
129. The Durpos admit the allegations contained in Paragraph 129.
130. The Durpos re-allege their answers to Paragraphs 64 – 69 above, as if set
forth herein.
131. The Durpos state the allegations of Paragraph 131 are conclusions of law,
as opposed to statements of fact, and therefore no response is required. However, to
the extent a response might be required, the Durpos deny the allegations contained in
Paragraph 131 and demand strict proof thereof.
132. The Durpos deny the allegations contained in Paragraph 132 and demand
strict proof thereof.
133. The Durpos state the allegations of Paragraph 133 regarding
“constructive notice” are conclusions of law, as opposed to statements of fact, and
therefore no response is required. However, to the extent a response might be required,
the Durpos deny the allegations contained in Paragraph 133 and demand strict proof
thereof.
134. The Durpos deny the allegations contained in Paragraph 134 as phrased.
The Durpos further state that absent the Defendant Associations’ agreement to pay the
fair value for the use of the Durpos’ property and the service required to operate the
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System, the Defendant Associations are in violation of their portions of the SFWMD
Permit and the Durpos are entitled to terminate the Defendant Associations’ dumping of
water and resulting flooding of and continuing trespass on the Durpos’ property.
135. The Durpos are without knowledge as to the truth or falsity of the
allegations contained in Paragraph 135 and therefore deny them.
136. The Durpos admit that a declaratory judgment from the Court is necessary
to declare the respective rights of the parties. The Durpos deny the remaining
allegations contained in Paragraph 136 and demand strict proof thereof.
137. The Durpos deny the allegations contained in Paragraph 137.
The Durpos deny the Counter-Plaintiffs are entitled to the relief requested in the
prayer for relief following Paragraph 137, including subparts (a) – (e) therein.
The Durpos deny each and every allegation in the Counterclaim not specifically
admitted previously herein and they specifically deny that Counter-Plaintiffs are entitled
to recover any of the relief prayed for or requested in the Counterclaim under any of its
counts.
AFFIRMATIVE DEFENSES
The Durpos assert the following additional affirmative defenses to the
Counterclaim:
First Affirmative Defense
1. The Counter-Plaintiff’s claims should be dismissed for failure to join an
indispensable party: the South Florida Water Management District. The South Florida
Water Management District (SFWMD) is tasked with responsibility for, among other
things, the management of surface waters in Lee County, Florida. Indeed, all waters in
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the State of Florida are subject to regulation under Chapter 373 of the Florida Statutes
unless specifically exempted by general or special law. The SFWMD has the authority
to require permits and to impose such reasonable conditions as are necessary to
assure that the construction, alteration, operation and maintenance of any stormwater
management system will comply with the requirements of Chapter 373 and will not be
harmful to the water resources of the district.
2. Counter-Plaintiffs claim that the Golf Course Property1 and the their
properties are to be served by a unified water management system developed and
operated in accordance with permits issued by the SFWMD and that they retain certain
rights to alter the flow of the surface waters through the system and onto the Golf
Course Property. The Counter-Plaintiff further seek an order declaring their rights and
obligations as to the operation of the unified surface water management system.
3. Based on the facts, as alleged by the Counter-Plaintiffs, and the legal
authority granted the SFWMD by statute, the SFWMD is an indispensable party to this
action. The SFWMD has a material interest in the subject matter of this suit and would
be directly affected by an adjudication of this controversy. The Court cannot completely
adjudicate this matter without affecting the interests of the SFWMD. The order and relief
requested by Counter-Plaintiffs would directly affect the SFWMD’s interest as the issuer
of the permit that governs how the unified surface water management system operates
and as the entity charged with responsibility by the Florida Legislature with the
management of surface waters in Lee County. Because the Plaintiffs have failed to join
SFWMD as a party, the case should be dismissed.
1 Capitalized terms shall have the same meaning herein as defined in the Counterclaim.
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Second Affirmative Defense
4. Counter-Plaintiffs fail to state a cause of action for each of their claims
because Counter-Plaintiffs fail to allege facts, and will be unable to prove, each element
of their claim or basis for declaratory decree, including the counts claiming: (1) the
reasonable use doctrine establishes or supports the rights Counter-Plaintiffs claim; (2)
the existence of an irrevocable license in Counter-Plaintiffs favor against the Durpos; (3)
the existence of an express easement in Counter-Plaintiffs favor against, and upon the
lands of, the Durpos; (4) the existence of a common-law easement by necessity on and
in the Durpos’ property in favor of the Counter-Plaintiffs; (5) the existence of an implied
easement on and in the Durpos’ property in favor Counter-Plaintiffs; and (6) existence of
a mutual drain. Thus, Counter-Plaintiffs have no enforceable right to use the Durpos’
property for any purpose.
Third Affirmative Defense
5. Counter-Plaintiffs’ claims relying on the Decree or the Cost Share
Agreement are barred by the doctrine of equitable estoppel. SFWMD has repeatedly
stated to the Counter-Plaintiffs and their agents, that these documents do not satisfy the
requirements of the SFWMD Permit for the operation of the surface and stormwater
drainage system. Thus, Counter-Plaintiffs are estopped from asserting that the Decree
or the Cost Share agreement are sufficient for compliance with the requirements and
obligations imposed by the SFWMD Permit for the permissible use and operation of this
system.
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Fourth Affirmative Defense
6. Counter-Plaintiffs’ claims for interest in or rights over the Durpos’ property
or claims relying on the SFWMD Permit are barred by the terms of said permit, which
expressly deny the creation of any property right or privilege by its terms.
Fifth Affirmative Defense
7. Some or all of the Counter-Plaintiffs’ claims are barred by the doctrine of
laches. §95.11(6), Fla. Stat. The Counter-Plaintiffs stood by and silently acquiesced to
the continued use and operation of the system without any compensation to the Durpos
for the cost of operating said system, despite their knowledge of the existence of the
Cost Share Agreement and other bases for the rights they now claim under. The
Durpos lacked knowledge of the System and of the Defendant Associations’ dumping of
their surface waters onto the Golf Course Property at the time of purchasing the
property or in the years following that purchase, and did not know Counter-Plaintiffs
would be asserting property rights and interests over the Golf Course Property. The
Durpos will suffer injury and prejudice if the Counter-Plaintiffs prevail on these claims.
Thus, equity cannot allow the Counter-Plaintiffs to benefit from their prolonged delay in
bringing these claims.
Sixth Affirmative Defense
8. Some or all of the Counter-Plaintiffs’ claims are barred by the doctrine of
balancing of relative conveniences of the parties. Equity will not require the performance
of an act where the harm to the person coerced is wholly disproportionate to the benefit
of the party, or when greater injury and inconvenience will result to the defendant from
an injunction than will be caused to the plaintiff by its refusal. The injury to the Durpos
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by the Counter-Plaintiffs’ continued unauthorized use of the Golf Course Property
without adequate compensation is great, resulting in repeated destruction of the
property by flooding after heavy rains. However, the harm to Counter-Plaintiffs by
refusal of their claims is minimal, and avoidable if the Counter-Plaintiffs agree to
compensate the Durpos a reasonable amount for the use of their property and the
operation of the System.
Seventh Affirmative Defense
9. As an additional defense, the Durpos further state: following the resolution
of the arbitration with Stardial, the execution of the Cost Share Agreement, and in the
first seven years following the Durpos acquisition of the Golf Course Property, Counter-
Plaintiffs never recorded any easement or license to the property, never made any claim
to rights or privileges with respect to the Golf Course Property, and failed to provide any
indication to the Durpos of the existence of the unified surface water system or the
rights and obligations of the parties with regard to same. This inaction by Counter-
Plaintiffs misled and concealed from the Durpos the existence of a unified stormwater
drainage system, the rights of the Durpos under said system, and the nature and extent
of Counter-Plaintiffs’ obligations. Thus, the Counter-Plaintiffs have ratified, waived
claims against, acquiesced in, and accepted the Durpos right to refuse further drainage
of the surface and stormwaters under the current system and are barred from
contending they have any claim to or interest in the Durpos property.
Eighth Affirmative Defense
10. Some or all of the Counter-Plaintiffs’ claims are barred their inequitable
conduct and the doctrine of unclean hands, for among other reasons, the actions and
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omissions described in paragraph 9, above, and by the Counter-Plaintiffs conduct in
raising claims pursuant to the Cost Share Agreement and the SFWMD Permit, after
having violated the terms and conditions therein. Counter-Plaintiffs, for seven years,
made no payment or efforts to pay for its share of the cost of operating the surface
water drainage system and refused to offer and pay a reasonable amount for the
services and use of the Durpos’ property. Counter-Plaintiffs also failed to comply with
the requirements set out by the SFWMD for compliance with their portion of the
SFWMD Permit. Finally, Counter-Plaintiffs knowingly and intentionally failed to record
the Cost Share Agreement, as required by paragraph 11 therein, in order to mislead
future owners of the Golf Course Property such as the Durpos and conceal their
purported obligations under the agreement. Equity cannot permit or assist Counter-
Plaintiffs in benefiting in the face of their own wrongful conduct.
Ninth Affirmative Defense
11. Some or all of Counter-Plaintiffs’ claims are barred by the terms of the
Cost Share Agreement, which required (in paragraph 11 therein) the recording of the
document in order for the rights and obligations described therein to run with title to the
Golf Course land. The Cost Share Agreement was never recorded. Thus, the provision
therein imposing rights and obligations that run with the land and upon the parties
successor or assigns never took effect.
Tenth Affirmative Defense
12. It was not the intent of the Counter-Plaintiffs and the Durpos’
predecessors in title for the licenses, easements, drainage rights, and property interests
and rights claimed in the Counterclaim to be applied or enforced in the manner in which
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Counter-Plaintiffs seek. Thus, some or all of the Counter-Plaintiffs claims are barred as
being contrary to the intent of the parties.
Eleventh Affirmative Defense
13. Although the Durpos deny they are bound by the Cost Share Agreement
and Decree, in the event the Court determines otherwise, some or all of Counter-
Plaintiffs claims are barred by the doctrine of collateral estoppel and res judicata in so
far as Counter-Plaintiffs are claiming rights under the Decree as the intended third party
beneficiary, and they seek to impose obligations on the Durpos as the successors to
other parties to the Decree. Thus, Counter-Plaintiffs and the Durpos are in privity with
the parties to the arbitration, and Counter-Plaintiffs are barred from re-litigating the
claims and issues already decided in the arbitration.
Twelfth Affirmative Defense
14. Counter-Plaintiffs waived the claims raised in the Counterclaim. Counter-
Plaintiffs intentionally relinquished their known rights related to the Golf Course Property
by failing to record in the public records the Cost Share Agreement and other
documents creating the land use rights and interests they claim, and by other conduct
described in the paragraphs above.
Thirteenth Affirmative Defense
15. Counter-Plaintiffs, in knowingly utilizing and accepting the benefits
provided by the Durpos and refusing to pay for such services or compensate the Durpos
for the damages caused, have been unjustly enriched and are entitled to no relief as a
matter of equity and good conscious.
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Fourteenth Affirmative Defense
16. The conduct of Counter-Plaintiffs described in these Affirmative Defenses
and Counterclaim, and their attempt to use the SFWMD Permit as a basis for flooding
and using the Durpos’ property without just compensation, if allowed, would constitute
an unconstitutional taking, and an impermissible and inordinate burdening of the
Durpos’ property, in violation of Federal and Florida constitutional protections and
statutes. Counter-Plaintiffs, under color of law, and in conspiracy with governmental
actors have caused these deprivations of the Durpos’ property rights. Therefore, their
claims are barred.
Fifteenth Affirmative Defense
17. Counter-Plaintiffs’ claims are barred by the applicable statute of frauds in
that Counter-Plaintiffs seek an interest in the Durpos’ real property without any valid
written instrument signed by the owner of said real property.
Sixteenth Affirmative Defense
18. The allegations in the Counter-Plaintiffs Counterclaim are repugnant to,
negated and contradicted by the documents attached to the Counterclaim, which render
the Counterclaim a nullity and subject to dismissal.
Seventeenth Affirmative Defense
19. Counter-Plaintiffs’ claims are barred by their own negligence in failing to
record in the Public Records of Lee County information reflecting their claimed rights
involving the Golf Course Property, thereby causing innocent purchasers to acquire
such property on the basis that the property was unencumbered by the easements,
licenses and other rights the Counter-Plaintiffs now claim. Any losses or injury Counter-
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Plaintiffs claim they are suffering or will suffer are not the fault of the Durpos, but rather,
are the result of Counter-Plaintiffs’ and their agents’ and predecessors’ own negligence,
misleading conduct, and/or lack of due diligence in matters outside of the Durpos’
control.
Eighteenth Affirmative Defense
20. Counter-Plaintiffs’ refusals to pay or contribute to the costs for use and
services provided by the Golf Course Property and the Durpos bars all claims by
Counter-Plaintiffs.
Nineteenth Affirmative Defense
21. Counter-Plaintiffs’ and their predecessors’ failure to obtain and perfect the
required land use rights required for their water dumping activities bars their claims.
Twentieth Affirmative Defense
22. Counter-Plaintiffs’ claims are barred by their lack of good faith and fair
dealing in their silence, failure to disclose material facts and information, and attempts
to take advantage of the Durpos’ ignorance of their activities.
Twenty-First Affirmative Defense
23. Counter-Plaintiffs’ claims are barred because Counter-Plaintiffs have
provided no consideration to the Durpos for any right or interest authorizing use of the
Durpos’ property and for the services provided by the Durpos for the operation of the
System.
Twenty-Second Affirmative Defense
24. Counter-Plaintiffs’ claims are barred in whole or in part by their own failure
to comply with the SFWMD’s requirements for their permits and by refusing to enter into
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any agreement with the Durpos to pay for the reasonable value of the benefits and land
use rights and services they seek to obtain.
Twenty-Third Affirmative Defense
25. Where, as here, it can be determined that the Durpos are innocent
purchasers of property without notice of any alleged burdens or land use rights by
adjacent owners, and it is those land owners who made the wrong complained of
possible, by, among other things, failing to obtain and record documents creating such
land use rights and put them in the public records, equity requires that Counter-Plaintiffs
bear the burden of such loss and the relief they seek should be denied.
Twenty-Fourth Affirmative Defense
26. The Durpos assert and incorporate by reference, as if set forth fully herein,
all allegations and claims contained in their Amended Complaint against Counter-
Plaintiffs as affirmative defenses to the counterclaims.
RESERVATION OF RIGHT TO AMEND AFFIRMATIVE DEFENSES
The Durpos reserve the right to amend their Answer and Affirmative Defenses as
discovery is provided during the course of these proceedings.
DEMAND FOR JURY TRIAL
The Durpos demand a trial by jury of all matters so triable as a matter of right.
MOTION TO STRIKE CLAIM FOR ATTORNEYS’ FEES
The Durpos, by and through undersigned counsel, further file this Motion to
Strike Counter-Plaintiffs’ Claim for Attorney’s Fee in Count III of the Counterclaim
because this relief is unauthorized under these circumstances, and state as follows:
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1. Counter-Plaintiffs assert claims for recovery of “attorney fees” against the
Durpos in Count III of the Counterclaim. (See Counterclaim, ¶ 103 and prayer for relief,
following same.)
2. While the allegations state the attorney fees being claimed are “pursuant
to paragraph 9 of the Cost Share Agreement,” there is no allegation that the Durpos are
parties to that agreement. Indeed, there could be no such allegation because the Cost
Share Agreement, attached as Exhibit Y to the Counterclaim and incorporated herein,
clearly and unequivocally demonstrates that the only parties to the Cost Share
Agreement are Estero Bay Improvement Association, Inc. and Bay Beach Golf Club,
Inc.
3. The well-established rule in Florida is that “a contract cannot bind one who
is not a party thereto or has not in some fashion agreed to accept its terms. To create a
valid contract there must be reciprocal assent to a certain and definite proposition.
CH2M Hill Se., Inc. v. Pinellas County, 598 So. 2d 85 (Fla. 2d DCA 1992) (citing In re
Estate of Donner, 364 So.2d 742 (Fla. 3d DCA 1978). See also Jenkins v. City Ice &
Fuel Co., 160 So. 215, 217 (Fla. 1935) (“A third party is not liable as a rule upon a
contract, express or implied, unless he was one of the immediate parties to the
agreement or has become a party to it by subsequent agreement with the original
parties.”).
4. When exhibits facially negate the claim set out by the complaint, the
documents attached control. Fladell v. Palm Beach County Canvassing Bd., 772 So. 2d
1240, 1242 (Fla. 2000). “When there is an inconsistency between the general
allegations of material fact in the complaint and the specific facts revealed by the
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Beasley & Demos, LLC, 2950 S.W. 27
th Avenue, Suite 100, Miami, FL 33133 – 305- 669-3131
exhibit, and they have the effect of neutralizing each other, the pleading is rendered
objectionable” and subject to dismissal. Greenwald v. Triple D Properties, Inc., 424 So.
2d 185, 187 (Fla. 4th DCA 1983); Harry Pepper & Associates, Inc. v. Lassiter, 1247 So.
2d 736 (Fla. 3d DCA 1971); Hotels of Key Largo v. RHI Hotels, Inc., 694 So. 2d 74 (Fla.
3d DCA 1999).
5. While Counter-Plaintiffs assert entitlement to recovery of attorney’s fees
under the provisions of the Cost Share Agreement, the attached document makes clear
that the parties executing the agreement, and therefore holding the claims and bound
by its terms, are Estero Bay Improvement Association, Inc. and Bay Beach Golf Club,
Inc. In short, the Durpos, are not parties to the “agreement” that purportedly provides for
recovery of “attorney fees.”
6. Florida follows the so-called “American Rule” as to whether attorneys’ fees
can be recovered in a case.
7. Under that Rule, attorneys’ fees are only recoverable when provided by
contract, statute, or in circumstances in which the case results in the creation of a (trust)
fund from which fees can be recovered. Those circumstances are not involved in this
case. See, e.g., Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240
(1975); Dade County v. Pena, 664 So.2d 959 (Fla. 1995); Standard Guaranty Ins. Co. v.
Quanstrom, 555 So.2d 828 (Fla. 1990); Martin v. Daskow, 339 So.2d 266 (Fla. 3d DCA
1976).
8. Counter-Plaintiffs have not attached any written contract to which the
Durpos are a party that provides for recovery of attorneys’ fees nor cited any statutory
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Beasley & Demos, LLC, 2950 S.W. 27
th Avenue, Suite 100, Miami, FL 33133 – 305- 669-3131
basis for their recovery, and are not seeking to create any common fund for others to
share. Therefore, there is no basis for recovery of attorneys’ fees.
WHEREFORE, the Durpos respectfully request the entry of an order striking from
the Counterclaim any allegation, claim or prayer for relief seeking the imposition of
attorney’s fees.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was filed with the
Florida Court’s E-Filing Portal on this 24th day of January 2014, and pursuant to the
Florida Supreme Court’s Administrative Order No. AOSC13-49, a copy of foregoing will
be served via e-mail upon all counsel listed on the attached Service List, in accordance
with the requirements within Rule 2.516, Florida Rules of Judicial Administration.
Respectfully submitted,
Attorneys for Plaintiffs,
Timothy J. Murty, Esq.
MURTY & MONK, P.A. 1633 Periwinkle Way, Suite A Sanibel Island, FL 33957-4404 Tel.: 239-472-1000, Fax: 239-472-4449 E-mail: [email protected] AND BEASLEY & DEMOS, LLC
2950 S.W. 27th Avenue, Suite 100
Miami, FL 33133
Tel.: 305-669-3131, Fax: 786-360-5924
/s/ Joseph W. Beasley By: ____________________________
JOSEPH W. BEASLEY
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Beasley & Demos, LLC, 2950 S.W. 27
th Avenue, Suite 100, Miami, FL 33133 – 305- 669-3131
Florida Bar No. 172074
JENNIFER PEREZ ALONSO
Florida Bar No. 0051389
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Beasley & Demos, LLC, 2950 S.W. 27
th Avenue, Suite 100, Miami, FL 33133 – 305- 669-3131
DURPO v. BELLA LAGO CONDOMINIUM AT BAY BEACH CONDOMINIUM
ASSOCIATION, INC., ET AL. – In the Circuit Court in and for Lee County, FL
Case No. 13-CA-001057
SERVICE LIST
Attorneys for Plaintiffs Clark L. Durpo and Clark L. Durpo, Jr. Joseph W. Beasley, Esq. BEASLEY & DEMOS, LLC 2950 S.W. 27th Avenue, Suite 100 Miami, FL 33133 Tel.: 305-669-3131, Fax: 786-360-5924 [email protected] [email protected] [email protected] [email protected] Attorneys for Plaintiffs Clark L. Durpo and Clark L. Durpo, Jr. Timothy J. Murty, Esq. MURTY & MONK, P.A. 1633 Periwinkle Way, Suite A Sanibel Island, FL 33957-4404 Tel.: 239-472-1000, Fax: 239-472-4449 E-mail: [email protected] Attorneys for The Palms of Bay Beach Condominium Association, Inc., Steven G. Koeppel, Esq. YESLOW & KOEPPEL, P.A. P.O. Box 9226 Fort Myers, FL 33902 Tel: 239-337-4343, Fax: 239-337-5762 [email protected], [email protected] Attorneys for Defendants Waterside IV at Bay Beach Condominium Association, Inc. Vanessa R. Ross, Esq. GROELLE & SALMON, P.A. 101 Paramount Drive Sarasota, FL 34232 Tel: 941-225-6900, Fax: 941-225-6990 [email protected]
Attorney for Defendant Bella Lago Condominium at Bay Beach Condominium Association, Inc., Waterside III at Bay Beach Condominium Association, Inc Jennifer A. Nichols, Esq. & Ashley D. Lupo,
Esq. ROETZEL & ANDRESS, L.P.A. 850 Park Shore Drive, 3rd Floor Naples, FL 34103 Tel.: 239-649-6200, Fax: 239-261-3659 [email protected],
[email protected] [email protected], [email protected]
Attorney for Defendants Bella Lago Condominium at Bay Beach Condominium Association, Inc., Casa Marina Association, Inc., Casa Marina II 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., and Waterside Manatee Bay Holdings, LLC. David Potter, Esq. FOWLER WHITE BOGGS P.A. 2235 First Street Fort Myers, Florida 33901 Direct: 239-985-4809, Fax: 239-425-6390 [email protected] [email protected] and
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Beasley & Demos, LLC, 2950 S.W. 27
th Avenue, Suite 100, Miami, FL 33133 – 305- 669-3131
Attorney Defendants Royal Pelican Association, Inc., Waterside I at Bay Beach Condominium Association, Inc., Waterside II at Bay Beach Condominium Association, Inc., Valencia Villas at Bay Beach Association, Inc., Manatee Bay at Bay Beach Condominium Association, Inc., Sunset Gulf Condominium Association, Inc., Casa Marina III Condominium Association, Inc., David Chaiet, Esq. & Michele A. Crosa, Esq. ESINGER, BROWN, LEWIS, FRANKEL & CHAIET, P.A. 4000 Hollywood Boulevard, Suite 265 South Hollywood, FL 33021 Tel.: 954-894-800, Fax: 954-894-8015 [email protected], [email protected], [email protected]
Michael Ciccarone, Esq. Corporate Quarters, Suite 213 13180 N. Cleveland Avenue North Fort Myers, FL 33903 Tel. 239-997-2200, Fax: 239-997-2200 [email protected]
Attorneys Defendants Royal Pelican Association, Inc.,The Palms of Bay Beach Condominium Association, Inc., Hibiscus Pointe Condominium Association, Inc., Manatee Bay at Bay Beach Condominium Association, Inc., Harbour Pointe Condominium Association, Inc. Ron M. Campbell, Esq. & Lindsay Lee, Esq. COLE, SCOTT & KISSANE, P.A. 27300 Riverview Center Blvd., Suite 200 Bonita Springs, FL 34134 Tel: 239-690-7900, Fax: 239-738-7778 [email protected] [email protected] [email protected] Attorney for Defendant South Florida Water Management District Jeffrey A. Collier, Esq. Douglas H. MacLaughlin, Esq. South Florida Water Management District 3301 Gun Club Road, MSC 1410 West Palm Beach, FL 33406 Tel: 561-682-6778, Fax: 561-682-6276 [email protected], [email protected] [email protected]