Contract analysis

I. RESPONSES TO JURISDICTIONAL AND INTRODUCTORY ALLEGATIONS

1. In response to the allegations of Paragraph 1 of the Complaint, Fairwater admits that this action has been filed in the Circuit Court of the Eighteenth Judicial Circuit in and for Seminole County, Florida. Fairwater further admits that this Court has subject-matter jurisdiction over actions for declaratory relief pursuant to Chapter 86, Florida Statutes. To the extent Paragraph 1 contains any additional allegation

2. In response to the allegations of Paragraph 2 of the Complaint, Fairwater admits that Ridgemark Development Partners LLC is a Florida limited liability company with its principal office located at 920 Altamonte Drive, Suite 210, Altamonte Springs, Florida 32701. Fairwater denies any remaining allegations contained in Paragraph 2 that are not specifically admitted herein.

3. In response to the allegations of Paragraph 3 of the Complaint, Fairwater admits that Fairwater Real Estate Investment Trust is a Maryland real estate investment trust with its principal office and headquarters located at 1400 Waverly Park Drive, Suite 600, Bethesda, Maryland 20814. Fairwater further admits that it is a publicly traded entity whose shares of beneficial interest are listed on the New York Stock Exc

4. In response to the allegations of Paragraph 4 of the Complaint, Fairwater admits that the real property at issue in this litigation is located in Seminole County, Florida, specifically at 4250 Commerce Park Boulevard, Sanford, Florida 32771 (referred to herein as the "Fairwater Property" or the "Northern Parcel"), and that the Northern Parcel consists of approximately 42.7 acres improved with a 614,000-square-foot

5. In response to the allegations of Paragraph 5 of the Complaint, Fairwater admits that Ridgemark owns a parcel of approximately 16.3 acres identified by Parcel ID 25-20-30-500-0030-0000, located immediately south of the Fairwater Property (the "Southern Parcel"). Fairwater further admits that Ridgemark acquired the Southern Parcel on or about March 8, 2019, from the Estate of Roland P. Thurmond, for a stated purcha

6. In response to the allegations of Paragraph 6 of the Complaint, Fairwater states that no response is required to the extent Paragraph 6 merely recites legal conclusions under Florida's Declaratory Judgment Act, Chapter 86, Florida Statutes. To the extent a response is required, Fairwater denies that a bona fide, actual, present, and practical need for a declaration of rights exists that would warrant declaratory r

II. RESPONSES TO ALLEGATIONS REGARDING THE CROSS-PARCEL EASEMENT

7. In response to the allegations of Paragraph 7 of the Complaint, Fairwater admits that a document titled "Special Warranty Deed" was recorded on June 22, 1998, in Official Records Book 4517, Page 1283, of the Public Records of Seminole County, Florida, by grantor Thurmond Industrial Holdings, Inc. to grantee Sunbelt Distribution Centers, Inc. Fairwater further admits that this instrument purported to create a 60-fo

8. In response to the allegations of Paragraph 8 of the Complaint, Fairwater admits that the Cross-Parcel Easement, as originally described in the 1998 Special Warranty Deed, was described as running generally north–south along the eastern boundary of the Northern Parcel for the purpose of connecting the Southern Parcel to Commerce Park Boulevard. Fairwater denies that said easement remains valid, enforceable, or in

9. In response to the allegations of Paragraph 9 of the Complaint, Fairwater admits that a replat titled "Commerce Park Boulevard Phase II Replat" was recorded on September 15, 2014, in Plat Book 78, Pages 44–46, of the Public Records of Seminole County, Florida (the "2014 Replat"). Fairwater admits that the 2014 Replat reconfigured lot lines, dedicated new public rights-of-way, and contained express language vacatin

10. In response to the allegations of Paragraph 10 of the Complaint, Fairwater denies the same. Specifically, Fairwater denies Ridgemark's contention that the Cross-Parcel Easement was not "shown on the prior plat" and therefore not subject to the 2014 Replat's vacation language. The Cross-Parcel Easement was depicted on the prior plat of Commerce Park Boulevard and was encompassed by the 2014 Replat's express vacati

11. In response to the allegations of Paragraph 11 of the Complaint, Fairwater admits that the special warranty deed conveying the Southern Parcel from the Estate of Roland P. Thurmond to Ridgemark, dated March 8, 2019, contains a recital referencing the Cross-Parcel Easement as an appurtenant right. Fairwater denies, however, that such recital had the legal effect of reviving, re-creating, or preserving an easement

12. In response to the allegations of Paragraph 12 of the Complaint, Fairwater states that it is without knowledge or information sufficient to form a belief as to the truth of Ridgemark's allegations regarding Ridgemark's planned development of a 96-unit light-industrial flex-space park to be known as "Ridgemark Commerce Village" on the Southern Parcel, and therefore denies the same. Fairwater further denies that Ri

13. In response to the allegations of Paragraph 13 of the Complaint, Fairwater states that it is without knowledge or information sufficient to form a belief as to the truth of Ridgemark's allegations regarding the condition, capacity, or adequacy of Lakemont Trail or any other roadway as it pertains to commercial truck traffic or access to the Southern Parcel, and therefore denies the same. Fairwater further denies

14. In response to the allegations of Paragraph 14 of the Complaint, Fairwater admits that on or about April 2, 2021, counsel for Ridgemark, the law firm of Castellon Foley & Ruiz LLP, transmitted a demand letter to Fairwater asserting the continued existence and enforceability of the Cross-Parcel Easement and demanding that Fairwater acknowledge and permit Ridgemark's use of the same. Fairwater further admits that C

III. RESPONSES TO ALLEGATIONS REGARDING DECLARATORY RELIEF SOUGHT

15. In response to the allegations of Paragraph 15 of the Complaint, Fairwater denies that the Cross-Parcel Easement was not extinguished by the 2014 Replat. Fairwater affirmatively avers that the Cross-Parcel Easement was lawfully extinguished upon the recording of the 2014 Replat, for the reasons set forth in Fairwater's responses above and in its Affirmative Defenses below. Accordingly, Fairwater denies that Ridge

16. In response to the allegations of Paragraph 16 of the Complaint, Fairwater denies the same. The Cross-Parcel Easement, having been extinguished by the 2014 Replat and by the doctrine of merger (as set forth in Fairwater's Affirmative Defenses below), does not run with the land and cannot inure to the benefit of Ridgemark as a purported successor-in-interest to the original dominant estate. An extinguished easemen

17. In response to the allegations of Paragraph 17 of the Complaint, Fairwater denies the same. Fairwater has no obligation — whether arising from the extinguished Cross-Parcel Easement, from any other instrument, or from any principle of law or equity — to permit Ridgemark or any other party to access, traverse, use, or occupy any portion of the Fairwater Property pursuant to or in connection with the Cross-Parcel E

18. In response to the allegations of Paragraph 18 of the Complaint, including any prayer for relief contained therein, Fairwater denies that Ridgemark is entitled to an award of attorney's fees, costs, or any other form of relief in connection with this action. Fairwater further denies that any statutory or contractual basis exists for the award of attorney's fees to Ridgemark in this matter.

IV. GENERAL DENIAL Except as specifically admitted herein, Fairwater denies each and every allegation of the Complaint, whether express or implied, and puts Ridgemark to its strict proof on all allegations asserted. Fairwater demands that Ridgemark establish each element of its claims by competent, admissible evidence. AFFIRMATIVE DEFENSES Without waiving, and in addition to, the denials and responses set forth above

19. Fairwater re-alleges and incorporates by reference its responses to each paragraph of the Complaint set forth above as though fully stated herein.

20. The Cross-Parcel Easement, originally recorded on June 22, 1998, in Official Records Book 4517, Page 1283, of the Public Records of Seminole County, Florida, was extinguished by operation of the Commerce Park Boulevard Phase II Replat (the "2014 Replat"), which was duly approved by the appropriate governmental authorities and recorded on September 15, 2014, in Plat Book 78, Pages 44–46, of the Public Records of S

21. The 2014 Replat expressly provides, in clear and unambiguous language, that "all private easements shown on the prior plat are hereby vacated except as otherwise noted herein." The Cross-Parcel Easement fell within the geographic boundary of the 2014 Replat. The Cross-Parcel Easement was not listed among the exceptions preserved or exempted from the replat's vacation language. Accordingly, the Cross-Parcel Easeme

22. Under Florida law, a duly recorded replat that vacates prior easements within its boundary extinguishes those easements. This principle applies to easements that are depicted on the prior plat, as well as to easements created by separate deed instruments where the easement corridor is depicted on, referenced in, or encompassed by the prior plat that is the subject of the replat. The 2014 Replat satisfied all proc

23. Following the recording of the 2014 Replat on September 15, 2014, the Cross-Parcel Easement ceased to exist as a matter of law. As an extinguished interest, the Cross-Parcel Easement was no longer available to be conveyed, assigned, inherited, or otherwise transferred. Ridgemark's subsequent acquisition of the Southern Parcel on March 8, 2019, could not and did not revive or re-create the extinguished easement in

24. Fairwater's acquisition of the Northern Parcel from Sunbelt Distribution Centers, Inc. in October 2016, for a purchase price of $47,300,000, was made in express reliance upon the extinguishment of the Cross-Parcel Easement by the 2014 Replat. This reliance was confirmed and supported by the following: (a) The title commitment issued by Tidewater Abstract & Title, LLC, bearing Commitment No. TWA-2016-09821, which

25. Accordingly, Ridgemark's Complaint is barred, in whole, by the extinguishment of the Cross-Parcel Easement effected by the 2014 Replat. SECOND AFFIRMATIVE DEFENSE (Estoppel and Laches)

26. Fairwater re-alleges and incorporates by reference its responses to each paragraph of the Complaint and the allegations of its First Affirmative Defense set forth above as though fully stated herein.

27. Ridgemark's claim is barred, in whole or in part, by the equitable doctrines of estoppel and laches.

28. Roland P. Thurmond, the prior owner of the Southern Parcel and the predecessor-in-interest from whom Ridgemark derived its title, was the controlling individual behind Thurmond Industrial Holdings, Inc. — the entity that served as the original grantor of the Cross-Parcel Easement in 1998. As such, Mr. Thurmond had actual knowledge or, at a minimum, constructive knowledge of the 2014 Replat and its vacation of pri

29. Following the recording of the 2014 Replat on September 15, 2014, neither Roland P. Thurmond during his lifetime, the Estate of Roland P. Thurmond following his passing, nor any other successor, assignee, or representative of the dominant estate took any action whatsoever to challenge, protest, seek to vacate, or otherwise object to the extinguishment of the Cross-Parcel Easement. This period of complete inaction

30. During this extended period of inaction and silence, Fairwater acquired the Northern Parcel in October 2016 for a purchase price of $47,300,000 and made substantial, material, and irreversible investments in the property, including but not limited to the following: (a) Fairwater entered into a 12-year triple-net (NNN) lease with Condor Supply Chain Solutions, Inc. ("Condor"), commencing in October 2016 and expiri

31. Fairwater and Condor relied upon the absence of any third-party easement claims in making the foregoing investments and operational decisions, and such reliance was reasonable and justified in light of the 2014 Replat's express vacation of private easements, the absence of any Schedule B-II exception in Fairwater's title commitment and owner's title insurance policy, and the complete silence and inaction of the S

32. It would be inequitable, unjust, and unconscionable to permit Ridgemark to assert an easement claim over the Fairwater Property after the extended period of silence and inaction by Ridgemark and its predecessors-in-interest, during which Fairwater detrimentally and materially relied upon the extinguishment of the Cross-Parcel Easement in acquiring, financing, leasing, and operating the Northern Parcel. Ridgemark'

33. Fairwater re-alleges and incorporates by reference its responses to each paragraph of the Complaint and the allegations of its First and Second Affirmative Defenses set forth above as though fully stated herein.

34. The Cross-Parcel Easement was independently extinguished by the common-law doctrine of merger when the dominant and servient estates came under common ownership or control.

35. Between approximately 2012 and 2014, both the Northern Parcel — the servient estate with respect to the Cross-Parcel Easement, then owned by Sunbelt Distribution Centers, Inc., a Thurmond-family-related entity — and the Southern Parcel — the dominant estate with respect to the Cross-Parcel Easement, owned by Roland P. Thurmond in his personal capacity — were under common Thurmond family ownership and control. Spe

36. Under well-established Florida law, when the dominant estate and the servient estate of an easement come into common ownership or control in the same person or entity, the lesser interest (the easement) merges into the greater interest (the fee simple) and is extinguished. See, e.g., Smith v. Clifton, 394 So. 2d 1127 (Fla. 5th DCA 1981); Restatement (Third) of Property: Servitudes § 7.5 (Am. Law Inst. 2000). The

37. The subsequent separation of the Northern Parcel and the Southern Parcel into different ownership — which occurred when Fairwater acquired the Northern Parcel in October 2016 and, later, when Ridgemark acquired the Southern Parcel in March 2019 — did not automatically revive or re-create the Cross-Parcel Easement. Under Florida law, once an easement is extinguished by merger, it can only be re-established by a ne

38. No new express grant of the Cross-Parcel Easement was made following the period of common Thurmond family ownership. No instrument was recorded in the Public Records of Seminole County, Florida, purporting to re-establish, re-create, or re-grant the Cross-Parcel Easement after its extinguishment by merger.

39. Accordingly, even if the 2014 Replat did not independently extinguish the Cross-Parcel Easement (which Fairwater does not concede), the doctrine of merger independently and separately extinguished the Cross-Parcel Easement during the period of unified Thurmond family ownership, and no subsequent event revived it. Ridgemark's claims are therefore barred. FOURTH AFFIRMATIVE DEFENSE (Failure to State a Cause of Acti

40. Fairwater re-alleges and incorporates by reference its responses to each paragraph of the Complaint and the allegations of its First, Second, and Third Affirmative Defenses set forth above as though fully stated herein.

41. Ridgemark's Complaint fails to state a cause of action upon which declaratory relief may be granted.

42. Ridgemark has failed to allege facts sufficient to demonstrate the continued legal existence of the Cross-Parcel Easement. The 2014 Replat's express vacation of private easements within its geographic boundary, combined with the period of common Thurmond family ownership that effectuated merger, establishes that the Cross-Parcel Easement was extinguished prior to Ridgemark's acquisition of the Southern Parcel on

43. Ridgemark cannot establish a bona fide, actual, present, and justiciable controversy warranting a declaratory judgment in its favor under Chapter 86, Florida Statutes, because the property interest Ridgemark seeks to have declared valid was extinguished as a matter of law prior to Ridgemark's acquisition of the Southern Parcel. There is no present doubt or uncertainty as to the rights of the parties that requires

44. Fairwater expressly reserves the right to assert additional affirmative defenses as may be revealed, warranted, or supported through discovery, investigation, expert analysis, or further proceedings in this action. Such additional defenses may include, but are not limited to, abandonment, acquiescence, unclean hands, waiver, implied release, and any defenses arising from the conduct of third parties, including pr

1. Denying the declaratory relief sought by Plaintiff Ridgemark Development Partners LLC in its Complaint in its entirety;

2. Entering a declaratory judgment in favor of Fairwater and against Ridgemark, declaring that the Cross-Parcel Easement originally recorded on June 22, 1998, in Official Records Book 4517, Page 1283, of the Public Records of Seminole County, Florida, was extinguished and is of no further force or effect, and that neither Ridgemark nor any party claiming by, through, or under Ridgemark has any right, title, or intere

3. Awarding Fairwater its reasonable attorney's fees and costs incurred in the defense of this action, to the extent permitted by applicable law, contract, or statute; and

4. Granting such other and further relief as this Court deems just, proper, and equitable under the circumstances. DEMAND FOR JURY TRIAL Defendant Fairwater Real Estate Investment Trust hereby demands trial by jury on all issues so triable in this action. Dated: August 30, 2021 Respectfully submitted, CALDERWOOD & HARKNESS LLP By: ________ Francesca Morano, Esq. (Admitted Pro Hac Vice) Jeffrey Park, Esq. (Admitted Pr