Brenda,
I hope you're doing well. Following up on our call earlier this week, I'm writing to transmit for your review the draft Answer and Affirmative Defenses of Defendant Fairwater Real Estate Investment Trust in *Ridgemark Development Partners LLC v. Fairwater Real Estate Investment Trust*, Case No. 2021-CA-002748-18-W, pending in the Circuit Court of the Eighteenth Judicial Circuit in and for Seminole County, Florida, before the Honorable Eleanor V. Cassin. Attached please find both a redlined and clean version of the draft Answer (Word format), along with a copy of Ridgemark's Complaint for Declaratory Judgment for your reference.
As you know, the deadline for filing the Answer is **Monday, August 30, 2021**. We would ask that you review the draft, sign as local counsel, and handle the e-filing with the Clerk of the Circuit Court of Seminole County by that date. I've outlined below a summary of the substantive content, several areas where we'd particularly value your input on Florida-specific issues, and the relevant procedural and logistical details.
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**I. Summary of the Draft Answer**
The Answer denies each material allegation of Ridgemark's Complaint for Declaratory Judgment, which was filed on July 19, 2021. As you'll see from the attached Complaint, Ridgemark — a Florida LLC managed by Hector J. Vilanova — seeks a judicial declaration that a 60-foot-wide non-exclusive ingress/egress and utility easement (the "Cross-Parcel Easement"), originally recorded on June 22, 1998 in Official Records Book 4517, Page 1283, of the Public Records of Seminole County, was not extinguished and continues to run with the land to benefit Ridgemark's adjacent 16.3-acre parcel (Parcel ID 25-20-30-500-0030-0000) immediately south of Fairwater's 42.7-acre logistics facility at 4250 Commerce Park Boulevard, Sanford, FL 32771.
Ridgemark is represented by Marco D. Castellon, Esq. (FL Bar No. 0653117) and Rebecca Shin-Torres, Esq. of Castellon Foley & Ruiz LLP.
**II. Affirmative Defenses — Summary and Questions for Your Review**
We have asserted four affirmative defenses, and I'd welcome your feedback on each, particularly with respect to Florida-specific procedural or substantive considerations:
**1. Extinguishment by the 2014 Replat.** The Commerce Park Boulevard Phase II Replat, recorded September 15, 2014 in Plat Book 78, Pages 44–46, reconfigured lot lines, dedicated new public rights-of-way, and contained language purporting to vacate prior private easements within the replat boundary. Specifically, the replat states: "all private easements shown on the prior plat are hereby vacated except as otherwise noted herein." Fairwater's position is that the Cross-Parcel Easement fell within the scope of that vacation. We anticipate that Ridgemark will argue the easement was created by a separate recorded deed instrument (rather than being shown on the prior plat) and therefore was not captured by the replat's vacation language. Brenda, I'd be very interested in your view on how Florida courts — particularly within the Eighteenth Circuit — have treated the distinction between plat-created easements and deed-created easements in the replat/vacation context. If you're aware of any controlling or persuasive authority on this point, that would be extremely helpful.
**2. Estoppel and Laches.** The original grantor of the easement, Thurmond Industrial Holdings, Inc. (Roland P. Thurmond's entity), and its successors took no action to challenge the replat or assert the Cross-Parcel Easement for over six years after the replat was recorded in 2014. This period of inaction extended through Ridgemark's acquisition of the southern parcel from the Estate of Roland P. Thurmond on March 8, 2019. Do you have any experience with laches defenses in Florida declaratory judgment actions involving real property? We'd also appreciate your guidance on whether there are any specific pleading requirements under Florida law for asserting laches — for example, whether we need to plead detrimental reliance with greater particularity at the answer stage.
**3. Merger.** Between approximately 2012 and 2014, both the dominant (southern) and servient (northern) parcels were under common Thurmond family ownership, which Fairwater contends effected a merger extinguishing the easement. For background, the original easement was granted by Thurmond Industrial Holdings, Inc. to Sunbelt Distribution Centers, Inc. in 1998; by 2012, related Thurmond interests had reacquired the northern parcel. I'd ask you to flag any Florida-specific nuances regarding the merger doctrine where the common ownership was through related but technically distinct legal entities (e.g., Thurmond Industrial Holdings, Inc. and other Thurmond family entities) rather than the identical legal person. This is an area where we want to make sure our pleading is airtight.
**4. Failure to State a Cause of Action.** This is a standard defense preserved for completeness.
**III. Florida Procedural Compliance**
We would appreciate your review of the draft for compliance with all applicable Florida Rules of Civil Procedure, including Rule 1.110 regarding the form and content of the answer and affirmative defenses, as well as any local rules or administrative orders of the Eighteenth Judicial Circuit and Seminole County that may apply.
Additionally, please confirm the proper e-filing procedures and service requirements. Service of the filed Answer should go to Castellon Foley & Ruiz LLP, 228 South Orange Avenue, Suite 1400, Orlando, FL 32801, as counsel of record for Ridgemark. As of this filing date, Pinnacle Shores Bank, N.A. has not yet intervened in the action, so service is required only to plaintiff's counsel.
For the signature block, please sign the Answer as local counsel. Your block should include your name, FL Bar No. 0987214, and Hargrove & Liddell, P.A.'s address at 501 East Church Street, Suite 300, Orlando, FL 32801. Francesca Morano (Responsible Partner) and I will also be listed as counsel for the defendant, with Calderwood & Harkness LLP's address at 1725 K Street NW, Suite 1100, Washington, DC 20006.
**IV. Engagement and Fee Arrangement**
For the record, and consistent with what we discussed during the engagement kickoff, Hargrove & Liddell, P.A. is engaged as Florida local counsel to Calderwood & Harkness LLP (Engagement No. 1036-00003) on behalf of Fairwater Real Estate Investment Trust in this matter. The engagement letter between Calderwood & Harkness and Fairwater was executed on July 12, 2021.
As agreed, the fee arrangement is as follows: Brenda Hargrove at $475/hr; associates at Hargrove & Liddell at $325/hr. We'd ask that you submit invoices to Calderwood & Harkness on a monthly basis for pass-through to the client. For context, Calderwood & Harkness's own rates on this matter are Partners at $895/hr, Associates at $525/hr, and Paralegals at $295/hr. The estimated defense budget through trial is $350,000–$475,000, of which local counsel fees are a component.
**V. Background Context**
For your reference as you review the draft, a few additional details on the property and related matters:
The Fairwater Sanford Logistics Center is a 614,000 SF Class-A cross-dock distribution facility situated on 42.7 acres, acquired by Fairwater in October 2016 for $47.3 million from Sunbelt Distribution Centers, Inc. The property is currently leased to Condor Supply Chain Solutions, Inc. under a 12-year NNN lease running from October 2016 through September 2028 at $3.89/SF annual base rent ($2,386,460/yr). Condor's lease grants it exclusive control over truck-court ingress/egress, making any additional easement traffic through the site operationally problematic. Condor's VP of Real Estate, Nathan H. Brierly, has communicated written opposition to any shared-access arrangement.
Fairwater tendered the defense of this action to its title insurer, Meridian Title Underwriters, Inc., under Policy No. MTU-2016-FL-089312 (policy limit $47,300,000) on August 6, 2021. Meridian acknowledged receipt on August 19, 2021, but a coverage determination remains pending. We are monitoring that process in parallel.
Notably, the original title commitment from Tidewater Abstract & Title, LLC (Commitment No. TWA-2016-09821) did not list the Cross-Parcel Easement as a Schedule B-II exception — a fact that is central to both our defense strategy and the title insurance claim.
Finally, please be aware that the Fairwater property is also encumbered by a first-priority mortgage in favor of Kensington Capital Markets, LLC (originally $28.4 million, recorded in OR Book 6312, Page 0988).
**VI. Action Items and Timeline**
To summarize the key action items and deadlines:
- **By COB Friday, August 27, 2021:** Please review the attached draft and provide any comments, edits, or feedback so we can finalize over the weekend if necessary. - **By Monday, August 30, 2021 (filing deadline):** Please handle e-filing of the finalized Answer with the Clerk of the Circuit Court of Seminole County and serve a copy on Castellon Foley & Ruiz LLP. - **Upon filing:** Please send a courtesy copy of the filed, time-stamped Answer to me and Francesca Morano. - **Thursday, August 26:** If you have any substantive questions or concerns after reviewing the draft, I'd suggest a brief call — I'm flexible on timing, so just let me know what works for you.
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Brenda, thank you very much for your assistance on this matter. We're glad to have your expertise and local knowledge on the team. Francesca Morano and Yuki Nakamura are copied here and are available if you have any questions for the broader team. Please don't hesitate to reach out to any of us.
Best regards,
**Jeffrey Park** Associate Calderwood & Harkness LLP 1725 K Street NW, Suite 1100 Washington, DC 20006 T: (202) 555-4738 E: jpark@calderwoodharkness.com
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