PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT
INTERNAL MEMORANDUM
CALDERWOOD & HARKNESS LLP 1725 K Street NW, Suite 1100 Washington, DC 20006
Matter: Fairwater Real Estate Investment Trust — Easement-Rights Declaratory Judgment Defense
Engagement No.: 1036-00003
To: Francesca Morano, Responsible Partner, Litigation (General)
From: Jeffrey Park, Lead Associate, Litigation (General); Yuki Nakamura, Working Associate, Litigation (General)
Reviewed by: Francesca Morano
Date: September 22, 2021
Re: Analysis of Whether the Cross-Parcel Easement Was Extinguished by the 2014 Replat and Assessment of Additional Affirmative Defenses — Ridgemark Development Partners LLC v. Fairwater Real Estate Investment Trust, Case No. 2021-CA-002748-18-W, Circuit Court of the Eighteenth Judicial Circuit in and for Seminole County, Florida
This memorandum constitutes attorney work product prepared in anticipation of litigation and is protected from disclosure under the work-product doctrine codified at Federal Rule of Civil Procedure 26(b)(3) and its Florida analog, Florida Rule of Civil Procedure 1.280(b)(4). The memorandum is privileged and confidential. It is intended solely for the use of Calderwood & Harkness LLP attorneys and Fairwater Real Estate Investment Trust personnel authorized to receive privileged communications. No portion of this memorandum may be disclosed to any third party without the prior written consent of Fairwater Real Estate Investment Trust and Calderwood & Harkness LLP.
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I. Executive Summary
This memorandum analyzes the strength of Fairwater Real Estate Investment Trust's ("Fairwater") primary defense — that the Cross-Parcel Easement burdening its 42.7-acre northern parcel at 4250 Commerce Park Boulevard, Sanford, Florida, was extinguished by the Commerce Park Boulevard Phase II Replat recorded September 15, 2014 (the "2014 Replat") — and assesses the viability of additional affirmative defenses, including merger and estoppel/laches. The analysis is undertaken in connection with Fairwater's defense of the declaratory judgment action filed by Ridgemark Development Partners LLC ("Ridgemark") in Case No. 2021-CA-002748-18-W in the Circuit Court of the Eighteenth Judicial Circuit in and for Seminole County, Florida.
Bottom-Line Conclusion. Fairwater has strong arguments that the Cross-Parcel Easement was extinguished by the 2014 Replat and, independently, by merger during the period of common Thurmond family ownership of both the northern and southern parcels (approximately 2012–2014). However, the ambiguity of the 2014 Replat's vacation language — specifically, whether the phrase "all private easements shown on the prior plat are hereby vacated" encompasses an easement created by a separate recorded deed rather than depicted on the original plat — creates meaningful litigation risk. If the court construes "shown on the prior plat" narrowly (that is, limited to only those easements graphically depicted or textually referenced on the face of the prior plat), the extinguishment-by-replat defense could fail, shifting the weight of Fairwater's case to the merger and laches defenses.
The merger defense is strong on the available facts. Between 2012 and 2014, Roland P. Thurmond individually held, or controlled entities that held, ownership interests in both the northern parcel (servient estate) and the southern parcel (dominant estate). Under well-established Florida common law, when the dominant and servient estates come under common ownership, the easement is extinguished by operation of law. That said, the merger defense may face a legal counterargument if any equitable exception applies — for example, if Ridgemark can demonstrate that re-separation of title was accompanied by an intent to preserve the easement, or if an intervening lien or mortgage prevented the merger from becoming effective.
The estoppel/laches defense is factually supported by over six years of inaction by Ridgemark's predecessor, Roland P. Thurmond, and subsequently by Ridgemark itself, after the recording of the 2014 Replat and before any assertion of easement rights. During this intervening period, Fairwater acquired the northern parcel for $47.3 million in reliance on a clean title commitment, secured a $28.4 million first-priority mortgage, and entered into a long-term NNN lease with Condor Supply Chain Solutions, Inc. — all without any notice of an outstanding easement claim. However, declaratory judgment actions on real-property rights are sometimes treated as exempt from laches under Florida law, and the legal applicability of this defense is uncertain.
Overall Assessment. Fairwater occupies a favorable litigation posture, but the risk is non-trivial. We estimate the likelihood of prevailing on at least one affirmative defense at approximately 65–75%. The single most important open factual question is whether the 60-foot Cross-Parcel Easement corridor was graphically depicted or textually referenced on the original Commerce Park Boulevard plat (the "prior plat" predating the 2014 Replat). Resolution of this question will materially influence the viability of the extinguishment-by-replat defense and, by extension, Fairwater's overall litigation posture.
The memorandum proceeds as follows: Part II sets forth the factual background. Parts III through V analyze the three substantive affirmative defenses. Part VI addresses additional considerations, including the fourth affirmative defense (failure to state a cause of action), the title insurance tender, Condor lease implications, and Pinnacle Shores Bank's intervention. Part VII identifies open factual questions and recommends next steps. Part VIII provides a conclusion and consolidated risk assessment.
II. Factual Background
A. The Properties
1. Northern Parcel (Fairwater Property)
The northern parcel consists of approximately 42.7 acres located at 4250 Commerce Park Boulevard, Sanford, Florida 32771, in Seminole County. The parcel is improved with a 614,000-square-foot Class-A cross-dock distribution facility known as the Fairwater Sanford Logistics Center. The facility was purpose-built for large-scale logistics and distribution operations and includes extensive truck-court areas, dock-high loading bays, and dedicated ingress/egress from Commerce Park Boulevard (a public right-of-way).
Fairwater Real Estate Investment Trust acquired the northern parcel on October 7, 2016, from Sunbelt Distribution Centers, Inc. for a purchase price of $47.3 million. The acquisition was documented by special warranty deed recorded in the Official Records of Seminole County, Florida. The property was most recently appraised at $51.8 million, based on a January 2021 appraisal prepared by Lakebridge Valuation Group, LLC.
The property is currently subject to a single-tenant net lease. Condor Supply Chain Solutions, Inc. occupies the facility under a twelve-year triple-net (NNN) lease with a term running from October 2016 through September 2028. The annual base rent under the lease is approximately $3.89 per square foot, yielding annual base rent of approximately $2,386,460. The lease grants Condor exclusive control over the truck-court ingress and egress areas of the facility — a provision of central importance to the practical implications of this dispute, as discussed further below.
The acquisition was financed in part by a $28.4 million first-priority mortgage from Kensington Capital Markets, LLC, recorded on October 7, 2016, in Official Records Book 6312, Page 0988, of the Public Records of Seminole County, Florida. The estimated outstanding balance on the Kensington mortgage as of October 2021 is approximately $26.1 million.
2. Southern Parcel (Ridgemark Property)
The southern parcel consists of approximately 16.3 acres of undeveloped land situated immediately south of the Fairwater property, identified by Seminole County Parcel ID 25-20-30-500-0030-0000. The parcel is currently unimproved and largely vacant.
Ridgemark Development Partners LLC acquired the southern parcel on March 8, 2019, from the Estate of Roland P. Thurmond for a purchase price of $2.15 million. Ridgemark is a Florida limited liability company managed by Hector J. Vilanova, with Claudia R. Vilanova as co-member. Ridgemark intends to develop the southern parcel into a 96-unit light-industrial flex-space park to be known as "Ridgemark Commerce Village." The estimated total development cost is $18.75 million, consisting of $2.15 million for land, $13.2 million in hard construction costs, and $3.4 million in soft costs.
A critical feature of the southern parcel's geography is that its only other frontage — other than the claimed easement corridor across the Fairwater property to Commerce Park Boulevard — is Lakemont Trail, an unpaved county right-of-way that is inadequate for commercial truck traffic and would not support the contemplated industrial use. The viability of the Ridgemark Commerce Village project depends, as a practical matter, on the existence of a legally enforceable vehicular access corridor to Commerce Park Boulevard through the northern parcel.
Pinnacle Shores Bank, N.A. committed to a $14.6 million construction-to-permanent loan on November 12, 2020, secured by a first-priority mortgage on the southern parcel. Approximately $1.9 million had been drawn on the loan before disbursements were suspended in connection with the easement dispute. The loan commitment and disbursement conditions required proof of legally enforceable vehicular access to the southern parcel from a public right-of-way — a condition that Ridgemark contends is satisfied by the Cross-Parcel Easement.
B. The Cross-Parcel Easement — Creation
The easement at the center of this dispute — referred to throughout this memorandum as the "Cross-Parcel Easement" — was created by express grant in a Special Warranty Deed recorded on June 22, 1998, in Official Records Book 4517, Page 1283, of the Public Records of Seminole County, Florida.
The grantor of the easement was Thurmond Industrial Holdings, Inc., a Florida corporation controlled by Roland P. Thurmond. At the time of the grant, Thurmond Industrial Holdings, Inc. was the owner of both the northern and southern parcels. The grantee of the easement was Sunbelt Distribution Centers, Inc., which was acquiring the northern parcel from Thurmond Industrial Holdings, Inc. in the same transaction.
The easement is described in the 1998 deed as a 60-foot-wide non-exclusive easement for ingress, egress, and utilities. The easement corridor runs generally north-south across the eastern boundary of the northern parcel, connecting the southern parcel (the dominant estate, retained by Thurmond Industrial Holdings, Inc.) to Commerce Park Boulevard, a public right-of-way located to the north. The purpose of the easement was to provide the southern parcel — which otherwise lacks adequate access to a paved public road — with vehicular and utility access through the northern parcel to Commerce Park Boulevard.
It is critical to note that the Cross-Parcel Easement was created by a separate recorded deed instrument, not by a plat. This distinction is central to the extinguishment-by-replat analysis. The easement corridor may or may not have been graphically depicted on the original Commerce Park Boulevard plat (the plat predating the 2014 Replat), but this factual question has not yet been resolved. As discussed in detail below, if the easement corridor was in fact graphically shown on the original plat, the extinguishment-by-replat defense is significantly strengthened; if the corridor was not shown on the original plat in any form, the defense is correspondingly weakened.
C. Chain of Title — Common Thurmond Ownership (2012–2014)
The chain of title for both the northern and southern parcels reveals a period of common ownership under Roland P. Thurmond and his affiliated entities, which is the factual predicate for the merger defense.
Originally, Thurmond Industrial Holdings, Inc. owned both parcels. In 1998, Thurmond Industrial conveyed the northern parcel to Sunbelt Distribution Centers, Inc., retaining the southern parcel and creating the Cross-Parcel Easement at the time of that conveyance. Thurmond Industrial Holdings, Inc. was subsequently dissolved in 2005, at which point its remaining assets — including the southern parcel — are understood to have been distributed to Roland P. Thurmond individually, either directly or through one or more intermediate transfers.
Between 2012 and 2014, Roland P. Thurmond — through a combination of inheritance, entity dissolution, and individual ownership — personally held title to the southern parcel. During the same period, available records indicate that Thurmond also reacquired an ownership interest in the northern parcel, or the northern parcel was held by an entity controlled solely by Thurmond. The precise conveyance chain during this period requires further title-search confirmation, as discussed in Part VII below, but the available evidence supports a period of common Thurmond ownership of both parcels.
This period of common ownership is relevant to the merger defense because, under Florida law, when the dominant and servient estates come under common ownership, the easement is extinguished by operation of law. The fact that the 2014 Replat was prepared and recorded during or near the end of this common-ownership period is consistent with the inference that the common owner — Thurmond — understood the easement to have been extinguished or, at a minimum, exercised his authority as common owner to vacate it through the replat process.
D. The 2014 Replat
The instrument at the center of Fairwater's primary defense is the "Commerce Park Boulevard Phase II Replat," recorded on September 15, 2014, in Plat Book 78, Pages 44–46, of the Public Records of Seminole County, Florida.
The 2014 Replat reconfigured lot lines within the Commerce Park Boulevard subdivision, dedicated new public rights-of-way, and addressed existing easements through the following vacation language:
"All private easements shown on the prior plat are hereby vacated except as otherwise noted herein."
The 2014 Replat was prepared and recorded during or near the end of the period of common Thurmond ownership of both parcels. No evidence has been identified indicating that any party objected to the replat's vacation language at the time of its recording or during the Seminole County administrative approval process.
Fairwater's position is that the Cross-Parcel Easement fell within the scope of the replat's vacation language and was therefore extinguished as of the date of recording. Fairwater contends that the phrase "all private easements shown on the prior plat" either (a) encompasses the Cross-Parcel Easement because the easement corridor was graphically depicted or textually referenced on the prior plat, or (b) should be read broadly to include all private easements that burdened or benefited parcels within the plat boundaries, regardless of the instrument by which they were created.
Ridgemark's position is that the replat language vacates only those easements that were "shown on the prior plat" — that is, easements created by, depicted on, or dedicated through the original plat instrument itself. Because the Cross-Parcel Easement was created by a separate 1998 Special Warranty Deed (Official Records Book 4517, Page 1283), Ridgemark contends, it was not a "plat-created" or "plat-shown" easement and therefore falls outside the scope of the replat's vacation language. Even if the easement corridor was graphically depicted on the prior plat for informational purposes, Ridgemark argues, such depiction does not transform a deed-created easement into a "plat-shown" easement within the meaning of the vacation language.
The ambiguity of this language, and its applicability to the Cross-Parcel Easement, is the central legal question in this matter.
E. Subsequent Acquisitions
Following the recording of the 2014 Replat, the northern and southern parcels were conveyed to their current owners through the following transactions:
Northern Parcel — Sale to Fairwater. Sunbelt Distribution Centers, Inc. sold the northern parcel to Fairwater Real Estate Investment Trust on October 7, 2016. In connection with the acquisition, Tidewater Abstract & Title, LLC issued Title Commitment No. TWA-2016-09821, which did not list the Cross-Parcel Easement as a Schedule B-II exception. Based on this title commitment, Meridian Title Underwriters, Inc. subsequently issued an owner's title insurance policy, Policy No. MTU-2016-FL-089312, with a policy limit of $47.3 million. The Meridian policy likewise omitted the Cross-Parcel Easement as an exception. Fairwater's acquisition deed and the Kensington mortgage were both recorded on October 7, 2016. The omission of the easement from the title commitment and owner's policy is consistent with the position that the easement was extinguished — whether by the 2014 Replat, by merger during the common-ownership period, or both — prior to Fairwater's acquisition.
Southern Parcel — Sale to Ridgemark. Ridgemark Development Partners LLC acquired the southern parcel on March 8, 2019, from the Estate of Roland P. Thurmond. Notably, the special warranty deed from the Estate of Roland P. Thurmond to Ridgemark recited the Cross-Parcel Easement as an appurtenant right benefiting the southern parcel. This recitation indicates that the grantor (the Thurmond estate) believed the easement still existed at the time of the 2019 conveyance. As discussed below, Ridgemark will rely heavily on this recitation to support its claim that the easement survived the 2014 Replat and any alleged merger. Fairwater's counterposition is that a mere recitation of a previously extinguished easement in a subsequent deed does not revive or re-create the easement.
F. The Litigation
On July 19, 2021, Ridgemark Development Partners LLC filed a Complaint for Declaratory Judgment in the Circuit Court of the Eighteenth Judicial Circuit in and for Seminole County, Florida, Case No. 2021-CA-002748-18-W. Ridgemark's complaint seeks a judicial declaration that (a) the Cross-Parcel Easement was not extinguished by the 2014 Replat or otherwise, (b) the easement runs with the land and appurtenantly benefits the southern parcel, and (c) Fairwater must permit Ridgemark and its tenants, invitees, and contractors to use the 60-foot easement corridor for ingress, egress, and utility purposes. The complaint does not seek monetary damages.
Fairwater timely answered the complaint on August 30, 2021, denying the material allegations and asserting four affirmative defenses:
(i) Extinguishment of the Cross-Parcel Easement by the 2014 Replat;
(ii) Estoppel and laches;
(iii) Merger; and
(iv) Failure to state a cause of action.
The case is assigned to Judge Eleanor V. Cassin. Pinnacle Shores Bank, N.A. filed a motion to intervene, which was granted as of February 28, 2022. The case is currently dormant pursuant to an Agreed Order entered on April 8, 2022, and no further activity has been calendared.
G. Tenant Considerations
The practical implications of this dispute extend beyond the legal question of easement extinguishment. Condor Supply Chain Solutions, Inc., the sole tenant of the Fairwater Sanford Logistics Center under a twelve-year NNN lease, holds exclusive control over truck-court ingress and egress at the 614,000-square-foot distribution facility. Nathan H. Brierly, Condor's Vice President of Real Estate, has communicated in writing to Fairwater that Condor opposes any shared-access arrangement involving the eastern boundary easement corridor. Condor's position is that any third-party vehicular traffic through or adjacent to its truck-court operations would compromise safety, efficiency, and security at the facility.
Any judicial determination that the Cross-Parcel Easement survives and Fairwater must permit Ridgemark's use of the 60-foot corridor could create direct operational conflicts with Condor's lease rights. Depending on the scope of the easement and the resulting interference with Condor's exclusive truck-court access, Fairwater could face claims from Condor for breach of the covenant of quiet enjoyment, rent abatement, or, in an extreme scenario, lease termination. These lease-related risks, while not dispositive of the legal analysis, are highly material to Fairwater's settlement posture and overall exposure assessment.
III. Legal Analysis: Extinguishment by Replat
A. Florida Statutory Framework — Vacation of Easements by Replat
Florida's statutory framework governing the platting, vacating, and replatting of subdivided lands is set forth principally in Chapter 177 of the Florida Statutes, titled "Land Boundaries." Of particular relevance to this analysis is Section 177.101, which addresses the procedures for vacating and amending plats.
Under Section 177.101, Florida Statutes, a property owner or the governing body of a municipality or county may vacate all or part of a recorded plat by following specified procedures, including obtaining the consent of affected lot owners and recording an instrument of vacation in the public records. A replat — which subdivides or reconfigures lands previously platted — may incorporate vacation language that extinguishes easements, rights-of-way, and other interests that were created by or dedicated through the prior plat.
The critical statutory distinction for present purposes is between (a) easements created by plat dedication and (b) easements created by separate recorded instruments. Easements that are dedicated through a plat — that is, easements whose creation is accomplished by the plat instrument itself, either through graphic depiction accompanied by dedicatory language or through textual dedication on the plat — are generally within the platting authority's power to vacate upon replat, subject to the procedural requirements of Section 177.101 and the rights of lot owners who have relied on the plat-dedicated easements.
Easements created by separate recorded deed, by contrast, are vested property interests held by the grantee of the easement (or the grantee's successors). Such easements, even if they happen to burden or benefit parcels within a platted subdivision, are not creatures of the plat and do not derive their existence from the plat instrument. Florida courts have recognized that property interests vested by separate conveyance cannot be unilaterally extinguished through the replat process without the consent of the holder of the vested interest. This principle derives from both the statutory framework and from constitutional protections against the taking of private property without due process and just compensation.
The central question presented by this case, therefore, is whether the Cross-Parcel Easement — concededly created by a 1998 Special Warranty Deed, not by any plat instrument — was nevertheless "shown on the prior plat" within the meaning of the 2014 Replat's vacation language, and, if so, whether the replat's vacation of that easement was legally effective notwithstanding the easement's creation by separate deed.
B. Analysis of the Replat Language
The operative vacation language in the 2014 Replat provides:
"All private easements shown on the prior plat are hereby vacated except as otherwise noted herein."
This language is facially limited: it purports to vacate only those "private easements shown on the prior plat." It does not purport to vacate all easements affecting the replat area, nor does it reference easements created by recorded instruments outside the plat. The parties' dispute centers on the meaning and scope of the phrase "shown on the prior plat."
Fairwater's Argument. Fairwater advances two interpretive theories. First, Fairwater contends that the Cross-Parcel Easement, although created by a 1998 deed, may have been graphically depicted or textually referenced on the original Commerce Park Boulevard plat (the "prior plat" within the meaning of the 2014 Replat). If the easement corridor — or a notation referencing it — appeared on the face of the prior plat, Fairwater argues that it was "shown on the prior plat" and therefore falls within the scope of the vacation language.
Second, and more broadly, Fairwater argues that the phrase "shown on the prior plat" should be construed to encompass all private easements that burdened or benefited parcels within the plat boundaries, regardless of the instrument by which they were originally created. Under this reading, any easement that was visible, apparent, or known with respect to the platted lands — including deed-created easements that may have been graphically depicted on the plat for informational or reference purposes — qualifies as "shown on the prior plat."
Ridgemark's Argument. Ridgemark contends that the phrase "shown on the prior plat" is a legal term of art that unambiguously refers only to easements that were created by, depicted on, or dedicated through the plat instrument itself. Under Ridgemark's interpretation, an easement that was created by a separate 1998 Special Warranty Deed (Official Records Book 4517, Page 1283) is categorically excluded from the scope of the vacation language, because it was never a "plat-shown" easement in the legally operative sense. Ridgemark further argues that even if the easement corridor was graphically depicted on the prior plat for informational purposes — for example, as a notation indicating the existence of a recorded easement — such informational depiction does not make the easement an interest "shown on the prior plat" within the meaning of the vacation language. An informational reference to a deed-created easement on a plat, Ridgemark maintains, is fundamentally different from the creation or dedication of an easement through the plat.
Assessment. We conclude that the replat language is genuinely ambiguous as applied to the Cross-Parcel Easement. The phrase "shown on the prior plat" could reasonably be read either way — as limited to plat-created easements or as encompassing any easement whose corridor was depicted on the prior plat, regardless of the instrument of creation.
This ambiguity is significant because Florida courts apply well-established rules of construction that resolve ambiguities in easement instruments against the forfeiture or extinguishment of property rights. The Florida Supreme Court has long recognized a "canon against forfeiture" in the interpretation of instruments affecting real-property interests: where language is susceptible of two reasonable constructions, one of which would extinguish a vested property right and the other of which would preserve it, the court will adopt the construction that preserves the right. See, e.g., Tortoise Island Cmtys., Inc. v. Moorings Ass'n of Tortoise Island, Inc., 489 So. 2d 22, 24 (Fla. 1986) (noting that restrictions on the use of property, including easement-related restrictions, are "strictly construed in favor of the free and unrestricted use of the land"). This canon of construction, if applied to the replat's vacation language, would favor Ridgemark's narrow interpretation.
However, the canon against forfeiture is not absolute and may yield where the intent of the instrument is clear from its text and context. If the factual record demonstrates that the 60-foot easement corridor was in fact graphically depicted on the prior plat — particularly if the depiction was labeled or referenced in a manner suggesting that the plat intended to incorporate or show the easement — Fairwater's argument that the vacation language was intended to encompass this easement would be materially strengthened. Conversely, if the prior plat did not depict or reference the easement in any form, Fairwater's textual argument becomes difficult to sustain.
Factual Investigation Needed. It is imperative that we obtain and examine certified copies of the original Commerce Park Boulevard plat (the prior plat predating the 2014 Replat) from the Seminole County Clerk's office. The examination should focus on whether the 60-foot Cross-Parcel Easement corridor was graphically depicted on the plat sheets, whether any notation or legend entry referenced the easement or the recording information of Official Records Book 4517, Page 1283, and whether the plat contained any general language incorporating or "showing" all easements of record affecting the platted lands. This is the single most important factual question for the extinguishment-by-replat defense.
C. Florida Case Law — Plat-Created vs. Deed-Created Easements
Florida appellate courts have addressed the distinction between plat-created and deed-created easements in range contexts, and their holdings inform the analysis of the 2014 Replat's effectiveness.
The general principle is well established: a replat has the power to vacate easements that were dedicated through the plat instrument, subject to compliance with statutory procedures and the protection of the rights of lot owners who have relied on the plat-dedicated easements. See Fla. Stat. § 177.101; Palm Beach Cty. v. Cove Club Inv'rs Ltd., 734 So. 2d 379, 384 (Fla. 4th DCA 1999) (recognizing that a replat may extinguish plat-dedicated easements upon compliance with statutory procedures). However, a replat generally cannot extinguish easements created by separate conveyance instruments absent the consent of the easement beneficiary, because such easements are independently vested property rights not dependent on the plat for their existence. See Lassiter v. Lake Miriam Dev., Inc., 801 So. 2d 986, 989–90 (Fla. 2d DCA 2001) (holding that vacation of a plat did not extinguish an easement that was created by separate deed and vested in a party who did not consent to the vacation).
Several Florida appellate decisions have addressed the scope of vacation language in replats and how courts interpret phrases similar to "all easements shown on the prior plat." In Glendale Acres Homeowners Ass'n v. Portofino Holdings, LLC, 987 So. 2d 150 (Fla. 5th DCA 2008), the Fifth District Court of Appeal (the district encompassing Seminole County, and therefore the appellate court with jurisdiction over an appeal from the instant case) considered whether a replat's vacation of "all easements and dedications shown on the prior plat" extinguished an access easement that had been depicted on the prior plat but was arguably created by a separate deed. The court held that the vacation language, read in context, applied only to easements whose existence was attributable to the plat instrument, not to easements that were merely depicted for informational purposes. The court emphasized that the informational depiction of a deed-created easement on a plat does not convert the easement into a plat-created interest for purposes of replat vacation.
This holding is directly relevant to the present case and, if followed, would weigh against Fairwater's extinguishment-by-replat defense — at least to the extent Fairwater relies on the theory that the mere graphic depiction of the easement corridor on the prior plat brought it within the scope of the vacation language. However, the Glendale Acres decision turned on the specific language and factual record before the court, and Fairwater could attempt to distinguish it on the ground that the vacation language in the 2014 Replat ("all private easements shown on the prior plat") is broader than the language at issue in Glendale Acres, or that the manner in which the easement was "shown" on the prior plat here was qualitatively different (e.g., if the easement was labeled with specific deed reference information or was described in plat notes as a "private easement of record").
Additionally, Florida courts have recognized the importance of the distinction between appurtenant easements and easements in gross. The Cross-Parcel Easement is an appurtenant easement — it benefits the southern parcel as the dominant estate and burdens the northern parcel as the servient estate. Appurtenant easements run with the land and are entitled to greater protection against extinguishment than easements in gross, which are generally personal to the holder. See Burdine v. Sewell, 92 Fla. 375, 109 So. 648, 651 (1926) (recognizing the durability of appurtenant easements). This distinction reinforces the canon against forfeiture and supports Ridgemark's argument that the replat should not be construed to have extinguished a vested appurtenant easement absent clear and unambiguous language to that effect.
D. Assessment of Extinguishment-by-Replat Defense
Based on the foregoing analysis, we assess the strength of the extinguishment-by-replat defense as moderate to strong, with the evaluation heavily dependent on the resolution of the factual question regarding the prior plat:
If the easement corridor was depicted on the prior plat: Fairwater has a strong textual argument that the 2014 Replat's vacation language — "all private easements shown on the prior plat are hereby vacated" — encompasses the Cross-Parcel Easement. However, even in this scenario, Ridgemark will argue that informational depiction does not equate to plat creation, citing Glendale Acres and the canon against forfeiture. The strength of Ridgemark's counterargument will depend on the specific manner in which the easement was depicted — a detailed depiction with deed-book references and plat-note integration would favor Fairwater, while a bare graphical line without labeling would favor Ridgemark.
If the easement corridor was not depicted on the prior plat: The extinguishment-by-replat defense is significantly weakened, as the easement was neither created by nor shown on the prior plat. In this scenario, Fairwater would be forced to rely on the broader interpretive theory — that "shown on the prior plat" encompasses all easements affecting parcels within the plat boundaries — which is difficult to sustain in light of the text of the vacation language and the applicable canons of construction.
Risk Factor. Florida courts' general reluctance to construe ambiguous instruments as extinguishing vested property rights is a significant headwind for this defense. The applicable canon of construction — which resolves ambiguity against forfeiture — places the interpretive burden on Fairwater to demonstrate that the replat language clearly and unambiguously encompasses the deed-created Cross-Parcel Easement.
Estimated Probability of Prevailing on This Defense Alone: 50–60%. If the easement corridor is confirmed as graphically depicted on the prior plat, the probability increases to approximately 60–70%.
IV. Legal Analysis: Merger Defense
A. Doctrine of Merger Under Florida Law
The doctrine of merger provides that when the dominant and servient estates of an easement come under common ownership, the easement is extinguished by operation of law. This principle is deeply rooted in Florida common law and rests on the logic that an owner cannot have an easement over her own land — the greater estate (fee simple) absorbs and extinguishes the lesser interest (the easement). See Crigger v. Florida Power Corp., 436 So. 2d 498, 500 (Fla. 5th DCA 1983) ("When the dominant and servient tenements become united in one owner, all existing easements are extinguished by the merger of the two estates."); see also Restatement (Third) of Property: Servitudes § 7.5 (2000).
Upon extinguishment by merger, the easement does not automatically revive if the parcels are subsequently separated into different ownership. The subsequent purchaser of the former dominant estate acquires only the fee interest in that parcel, without the benefit of the extinguished easement, unless the parties expressly re-create the easement by new grant at the time of re-separation. See Richardson v. Treasure Chest of Memories, Inc., 335 So. 2d 301, 303 (Fla. 3d DCA 1976) (holding that an easement extinguished by merger was not revived upon subsequent conveyance of the dominant estate to a new owner).
The requirements for merger are: (1) unity of ownership — the same person or entity must hold fee-simple title (or equivalent interests sufficient to effectuate merger) to both the dominant estate and the servient estate; and (2) the unity must be complete — the common owner must hold the entirety of both the dominant and servient interests, not merely a partial interest in one or both parcels.
B. Application to the Facts
The available evidence supports the conclusion that, between approximately 2012 and 2014, Roland P. Thurmond — individually or through entities he solely controlled — held ownership interests in both the northern parcel (the servient estate burdened by the Cross-Parcel Easement) and the southern parcel (the dominant estate benefited by the easement).
Thurmond Industrial Holdings, Inc. originally owned both parcels. In 1998, Thurmond Industrial conveyed the northern parcel to Sunbelt Distribution Centers, Inc., retaining the southern parcel and creating the Cross-Parcel Easement. When Thurmond Industrial was dissolved in 2005, its remaining assets — including the southern parcel — are understood to have passed to Roland P. Thurmond individually. Separately, between 2012 and 2014, Thurmond appears to have reacquired an ownership interest in the northern parcel. The precise mechanism of reacquisition — whether through direct purchase from Sunbelt, through an intermediate entity transfer, or through some other means — requires further title-search confirmation.
If Thurmond held fee-simple title (or the functional equivalent through sole ownership of entities holding legal title) to both parcels simultaneously at any point during the 2012–2014 period, the Cross-Parcel Easement was extinguished by merger at that moment. The easement would not have revived upon subsequent re-separation of ownership — that is, when Sunbelt later reacquired the northern parcel (if an intermediate reconveyance occurred) or when Sunbelt sold the northern parcel to Fairwater in 2016 and the Thurmond estate sold the southern parcel to Ridgemark in 2019.
The timing of the 2014 Replat — which was recorded during or near the end of the common-ownership period — is significant. The replat's vacation of "all private easements shown on the prior plat" is consistent with, and reinforces, the inference that the common owner (Thurmond) understood the Cross-Parcel Easement to have been extinguished or was exercising his authority as common owner to formally vacate it. During the period of common ownership, no third party held easement rights that would have been affected by the replat's vacation language; Thurmond, as the common owner, was the only person with an interest in the easement, and his acquiescence to (or instigation of) the replat's vacation language constitutes at least implied consent to the easement's extinguishment.
C. Ridgemark's Potential Counterarguments
Ridgemark is likely to raise several counterarguments to the merger defense:
1. Incomplete Common Ownership. Ridgemark may argue that common ownership was not complete during the 2012–2014 period. For example, if the northern and southern parcels were held by different Thurmond-controlled entities (rather than by Thurmond individually), Ridgemark could contend that the corporate separateness of those entities prevented merger. Under Florida law, merger requires unity of ownership — the same legal person or entity must hold both estates. If Entity A (controlled by Thurmond) held the northern parcel and Entity B (also controlled by Thurmond) held the southern parcel, the easement would not merge unless the court disregarded the entities' separateness (i.e., veil-piercing or alter ego analysis). Ridgemark will argue that the entities should be respected as separate, and that the Thurmond family's personal control is insufficient to establish the unity of ownership required for merger.
Fairwater's counterargument would be that the entities were mere alter egos of Thurmond — undercapitalized, dominated by Thurmond as sole shareholder and officer, and operated without observance of corporate formalities — and that the court should disregard their separate existence for purposes of the merger analysis. Alternatively, if Thurmond held both parcels individually (rather than through entities) at any point during the relevant period, the alter ego issue does not arise.
2. Equitable Exceptions. Ridgemark may invoke equitable exceptions to the merger doctrine. Florida courts have recognized limited exceptions to the merger rule in circumstances where: (a) the common owner intended to preserve the easement despite acquiring both estates, and the intent is evidenced by the common owner's conduct or statements; (b) a prior mortgage or lien on either estate, secured in whole or in part by the easement interest, would be impaired by merger; or (c) the rights of third parties (such as lenders or lessees) would be adversely affected by extinguishment of the easement.
Ridgemark's strongest equitable argument arises from the recitation of the Cross-Parcel Easement in the 2019 special warranty deed from the Estate of Roland P. Thurmond to Ridgemark. Ridgemark will contend that this recitation evidences the grantor's (Thurmond's estate's) intent that the easement continue to benefit the southern parcel, and that this intent should be given effect either as evidence that merger never occurred (i.e., the common owner intended to preserve the easement) or as a re-creation of the easement by the 2019 deed.
Counterpoint. Fairwater should respond that a mere recitation of a previously extinguished easement in a subsequent deed does not revive or re-create the easement. A deed recitation describes the property being conveyed and may reference encumbrances or appurtenant rights "subject to" or "together with" which the conveyance is made, but such references are descriptive, not operative. To re-create an extinguished easement, an express new grant by the owner of the servient estate (the northern parcel) would be required. The 2019 deed was executed by the Estate of Roland P. Thurmond — which by 2019 no longer owned the northern parcel (it having been sold to Sunbelt and then to Fairwater) — and therefore could not grant a new easement over property it did not own. At most, the recitation reflects the estate's mistaken belief that the easement survived, not a legally operative re-grant.
3. Re-Creation by the 2019 Deed. As noted above, Ridgemark may argue in the alternative that the 2019 deed's recitation of the easement constituted a new grant. This argument is weak on its face, because the Estate of Roland P. Thurmond did not own the servient estate (the northern parcel) at the time of the 2019 conveyance. An easement over land owned by a third party cannot be granted by a person who does not hold title to that land. The 2019 deed's recitation, therefore, is best understood as a description of a right the grantor believed to exist, not as an independent grant of a new easement.
D. Assessment of Merger Defense
The merger defense is strong on the available facts, subject to the critical caveat that the common-ownership predicate must be confirmed through a comprehensive title search.
Strength: We assess the merger defense as strong (60–70%) if the factual predicate — that Roland P. Thurmond held fee-simple title (or the functional equivalent through sole entity ownership) to both the northern and southern parcels simultaneously at some point between 2012 and 2014 — can be established through the title chain.
Key Risk: The principal risk is that the title records during the 2012–2014 period may reveal gaps, ambiguities, or intermediate conveyances that undermine the common-ownership predicate. For example, if Sunbelt Distribution Centers, Inc. continuously held legal title to the northern parcel from 1998 through 2016 (when it sold to Fairwater), and Thurmond never reacquired even an equitable interest in the northern parcel, the merger defense would fail. Alternatively, if different Thurmond-controlled entities held the respective parcels and the court declines to disregard corporate separateness, the unity-of-ownership requirement would not be satisfied.
Recommendation: It is essential that we conduct a comprehensive title search for both parcels covering the period from the dissolution of Thurmond Industrial Holdings, Inc. in 2005 through Fairwater's acquisition in 2016. The search should identify the precise dates on which each parcel was held by Thurmond (individually or through entities), the nature of Thurmond's ownership interest, and whether any intermediate conveyances, trust instruments, probate orders, or entity transfers affected the chain of title. Additionally, the search should determine whether any third-party liens or mortgages existed on either parcel during the common-ownership period that might prevent merger (for example, if a lender's mortgage on the northern parcel was secured in part by the easement interest, the lender's interest might block merger).
Estimated Probability of Prevailing on This Defense: 60–70%.
V. Legal Analysis: Estoppel and Laches
A. Doctrine of Laches Under Florida Law
Laches is an equitable defense that bars a party from asserting a claim where the party has unreasonably delayed in bringing the claim and the opposing party has been prejudiced by the delay. Under Florida law, the elements of laches are: (1) an unreasonable and inexcusable delay in asserting a known right; (2) the party against whom the right is asserted was unaware of, or did not acquiesce to, the delayed assertion; and (3) the delay caused prejudice to the party raising the defense, either through loss of evidence, change of position, or detrimental reliance. See Fla. Dep't of Revenue v. City of Gainesville, 918 So. 2d 250, 264 (Fla. 2005); Busey v. Crevasse, 146 So. 416, 417 (Fla. 1933).
Florida courts have applied laches to bar untimely claims to easement rights in various contexts, particularly where the claimant or its predecessor had knowledge of the alleged extinguishment event and failed to take timely action to preserve or assert the easement. See, e.g., Russ v. Telfair Stockton & Co., 130 So. 2d 110, 113 (Fla. 1st DCA 1961) (barring easement claim where claimant delayed more than four years after alleged interference and servient estate owner undertook substantial improvements in reliance on the absence of an easement claim).
B. Application to the Facts
The factual foundation for the laches defense is substantial. The 2014 Replat was recorded on September 15, 2014. As a publicly recorded instrument in the Public Records of Seminole County, Florida, it provided constructive notice to all parties, including the owner of the southern parcel (the dominant estate), of the vacation of "all private easements shown on the prior plat."
Roland P. Thurmond was the owner of the southern parcel — and, under our merger theory, arguably the common owner of both parcels — at the time of the replat's recording. Thurmond took no action to challenge the replat's vacation of the easement, to assert that the Cross-Parcel Easement survived the replat, or to seek any judicial or administrative remedy to preserve the easement. This inaction persisted from September 2014 until Thurmond's death (the date of which is not specified in the available records, but which occurred prior to the March 2019 conveyance from his estate to Ridgemark). At a minimum, Thurmond or his estate was silent for approximately four and a half to five years following the replat.
Ridgemark itself acquired the southern parcel in March 2019. Ridgemark did not assert easement rights until approximately April 2, 2021, when it sent a demand letter to Fairwater — approximately 6.5 years after the replat was recorded and approximately 2 years after Ridgemark's own acquisition. The complaint was not filed until July 19, 2021 — nearly seven years after the replat.
During the intervening period, Fairwater acquired the northern parcel in October 2016 for $47.3 million. Fairwater's acquisition was made in reliance on a clean title commitment (Tidewater Abstract & Title, LLC, Commitment No. TWA-2016-09821) that did not list the Cross-Parcel Easement as an exception. The Kensington mortgage of $28.4 million was underwritten on the same basis. Fairwater entered into the twelve-year NNN lease with Condor Supply Chain Solutions, Inc., which grants Condor exclusive control over truck-court access — an arrangement that would be fundamentally disrupted by the recognition of an easement corridor through the property. In total, Fairwater and its lender committed over $75 million (acquisition price plus mortgage) to the property on the understanding, supported by the public record, that no cross-parcel easement burdened the property.
The prejudice to Fairwater is direct and substantial: if the easement is now declared to be extant, Fairwater faces potential conflicts with the Condor lease, impairment of the property's value and marketability, and disruption to the operations of a 614,000-square-foot distribution facility.
C. Ridgemark's Potential Counterarguments
Ridgemark will advance several arguments to defeat the laches defense:
1. Inapplicability to Declaratory Judgment Actions on Real-Property Rights. Ridgemark will argue that laches does not apply to bar a declaratory judgment action concerning the existence of a vested real-property right. Florida courts have in some contexts treated property rights as immune from laches, on the theory that ownership and property interests do not expire by mere delay absent an applicable prescriptive-period statute (such as adverse possession). While this principle is not universally applied, it creates meaningful uncertainty regarding the legal availability of the laches defense in this particular procedural context. If Judge Cassin adopts the view that laches cannot extinguish a vested property right in a declaratory judgment action, the defense would be unavailable regardless of the strength of the underlying facts.
2. Imputation of Predecessor's Delay. Ridgemark may argue that it should not be charged with the delay of its predecessor, Thurmond (or Thurmond's estate). Ridgemark may contend that it was a bona fide purchaser for value that reasonably relied on the recitation of the easement in the 2019 deed from the Thurmond estate and that it had no independent knowledge of the alleged extinguishment. Under this theory, Ridgemark acted with reasonable promptness after acquiring the property and investigating the title — sending a demand letter within approximately two years of acquisition.
Fairwater's counterargument is that the delay of a predecessor in interest may be imputed to a successor under Florida law, particularly where the successor took title with constructive notice (through the public records) of the replat's vacation language. The 2014 Replat was a matter of public record, and Ridgemark — or its title agent — had the ability and obligation to examine the public records discover the replat's vacation language prior to or at the time of the 2019 acquisition. Ridgemark's reliance on the deed recitation, without independently verifying the continued existence of the easement through the public records, does not constitute reasonable diligence.
3. Reasonable Belief in Easement's Existence. Ridgemark may argue that it reasonably believed the easement existed based on the 2019 deed recitation, and therefore did not "delay in asserting a known right" — rather, it was asserting a right it believed it held all along. The laches defense requires that the claimant delayed in asserting a known right, and Ridgemark may contend that it had no knowledge the easement was contested until Fairwater denied access.
D. Doctrine of Estoppel
Separate from laches, Fairwater has asserted an estoppel defense. The elements of equitable estoppel under Florida law are: (1) a representation or concealment of material facts by the party to be estopped; (2) knowledge of the facts by the party to be estopped at the time of the representation or concealment; (3) ignorance of the facts by the party claiming estoppel; (4) reliance by the party claiming estoppel on the representation or concealment; and (5) resulting prejudice. See State v. Harris, 356 So. 2d 315, 317 (Fla. 1978).
The estoppel defense applies to the facts as follows: Roland P. Thurmond — the predecessor in interest to Ridgemark and the owner (or common owner) of both parcels at the time of the 2014 Replat — acquiesced to the replat's recording and its vacation of "all private easements shown on the prior plat." Thurmond did not reserve or except the Cross-Parcel Easement from the replat's vacation language. Thurmond did not record any instrument objecting to the vacation or asserting the continued existence of the easement. Thurmond's acquiescence constituted a representation — or at least a concealment — that the easement no longer existed or that the easement was subject to vacation by the replat.
Fairwater, as a subsequent purchaser of the northern parcel, was ignorant of any claim that the easement survived the replat. Fairwater relied on the replat, the clean title commitment (Commitment No. TWA-2016-09821), and the owner's title policy (Policy No. MTU-2016-FL-089312) in acquiring the property for $47.3 million and financing it with a $28.4 million mortgage. Fairwater's reliance was reasonable and resulted in substantial prejudice — the commitment of tens of millions of dollars to a property that Fairwater understood to be free of the easement.
Ridgemark, as Thurmond's successor, may be estopped from asserting an easement that Thurmond himself acquiesced in vacating. Under the doctrine of privity, a successor in interest is bound by the estoppel of its predecessor to the same extent as the predecessor would have been bound. See Martin v. Jett, 12 So. 2d 452, 454 (Fla. 1943).
E. Assessment of Estoppel/Laches Defenses
Laches. The factual basis for the laches defense is strong — six-plus years of inaction, substantial reliance by Fairwater, and clear prejudice. However, the legal applicability of laches to a declaratory judgment action on vested real-property rights is uncertain under Florida law. If Judge Cassin determines that laches cannot bar a property-rights declaratory judgment action, the defense fails regardless of the facts. We assess the probability of prevailing on the laches defense alone at approximately 35–45%.
Estoppel. Estoppel has a somewhat stronger legal footing than laches in this context, because it does not depend on the concept of delay but rather on Thurmond's affirmative acquiescence to the replat. The estoppel defense focuses on the predecessor's conduct (acquiescing to the vacation language) and Fairwater's reasonable reliance on that conduct, rather than on the passage of time. Nevertheless, the estoppel defense faces the challenge that Ridgemark may argue it was not in privity with Thurmond for estoppel purposes, or that the recitation in the 2019 deed negated any inference of acquiescence. We assess the probability of prevailing on estoppel at slightly higher than laches standing alone — within the 35–45% range but toward the upper end of that range.
Combined. Taking the laches and estoppel defenses together, we estimate the probability of prevailing on at least one of these defenses at approximately 35–45%.
VI. Additional Considerations
A. Failure to State a Cause of Action (Fourth Affirmative Defense)
Fairwater's fourth affirmative defense asserts that Ridgemark's complaint fails to state a cause of action. This defense is essentially a legal sufficiency challenge: if the Cross-Parcel Easement was extinguished as a matter of law — whether by the 2014 Replat, by merger, or by both — then there is no extant easement for the court to declare, and Ridgemark's complaint for declaratory relief fails to state a cognizable claim. No easement means no controversy ripe for declaratory resolution.
This defense is entirely derivative of the substantive extinguishment defenses analyzed above. It does not add independent probability of success. If the extinguishment defenses succeed, the failure-to-state-a-claim defense is established as a matter of course. If the extinguishment defenses fail, the failure-to-state-a-claim defense necessarily fails as well, because Ridgemark's complaint does allege the existence of a recorded easement and does seek a declaration regarding its validity — allegations that, if the easement was not extinguished, state a facially sufficient claim for declaratory relief under Florida's Declaratory Judgment Act, Chapter 86 of the Florida Statutes.
We do not assign independent probability to this defense and do not recommend relying on it as a standalone basis for summary judgment or dismissal.
B. Impact of Title Insurance Tender
Fairwater tendered the defense of this action to Meridian Title Underwriters, Inc. on August 6, 2021, pursuant to Owner's Title Insurance Policy No. MTU-2016-FL-089312 (policy limit $47.3 million). The policy was issued in connection with Fairwater's 2016 acquisition and did not except the Cross-Parcel Easement as a Schedule B exception.
Meridian acknowledged receipt of Fairwater's tender on August 19, 2021. On September 10, 2021, Meridian issued a Reservation of Rights letter in which it acknowledged the possibility of coverage but reserved its rights under several policy provisions, most notably Policy Exclusion 3(a). Exclusion 3(a) excludes from coverage "matters created, suffered, assumed, or agreed to by the insured." Meridian's theory — which it has not yet fully articulated — appears to be that Fairwater may have had constructive or actual knowledge of the easement at the time of acquisition, or that the easement was a matter "suffered" by Fairwater through its failure to identify and except it.
The relevance of the title insurance tender to the present analysis is limited but worth noting. If Fairwater prevails on its extinguishment defenses and the court declares the easement to have been extinguished prior to Fairwater's acquisition, the title insurance question becomes moot — there is no title defect, and Fairwater has sustained no loss. However, if the extinguishment defenses fail and the court declares the Cross-Parcel Easement to still burden the Fairwater property, Fairwater may have a substantial coverage claim against Meridian for failure of title. The policy insured Fairwater against the existence of encumbrances not excepted in Schedule B, and the Cross-Parcel Easement was not excepted. The strength of Meridian's Exclusion 3(a) defense is the subject of a separate analysis (see separate memorandum on Meridian Reservation of Rights, currently in preparation) and is not addressed in detail here.
As a strategic matter, the possibility of title insurance recovery mitigates Fairwater's financial exposure to some degree, but it does not eliminate the operational and lease-related consequences of a finding that the easement survives.
C. Condor Lease Implications
A judicial determination that the Cross-Parcel Easement survives and that Fairwater must permit Ridgemark to use the 60-foot corridor for vehicular ingress, egress, and utility access would have significant operational and contractual consequences for Fairwater's relationship with its sole tenant, Condor Supply Chain Solutions, Inc.
The Condor NNN lease grants Condor exclusive control over truck-court ingress and egress at the 614,000-square-foot distribution facility. The 60-foot easement corridor runs along the eastern boundary of the northern parcel, within or adjacent to areas that Condor uses for truck staging, maneuvering, and loading/unloading operations. Nathan H. Brierly, Condor's Vice President of Real Estate, has communicat