IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT IN AND FOR SEMINOLE COUNTY, FLORIDA
CIVIL DIVISION
RIDGEMARK DEVELOPMENT PARTNERS LLC, a Florida limited liability company,
Plaintiff,
v.
Case No. 2021-CA-002748-18-W
FAIRWATER REAL ESTATE INVESTMENT TRUST, a Maryland real estate investment trust,
Defendant.
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DEFENDANT FAIRWATER REAL ESTATE INVESTMENT TRUST'S RESPONSES AND OBJECTIONS TO PLAINTIFF RIDGEMARK DEVELOPMENT PARTNERS LLC'S FIRST SET OF INTERROGATORIES (NOS. 1–20) AND FIRST REQUESTS FOR PRODUCTION (NOS. 1–25)
Defendant FAIRWATER REAL ESTATE INVESTMENT TRUST ("Fairwater" or "Defendant"), by and through its undersigned counsel, Calderwood & Harkness LLP, and Florida local counsel, Hargrove & Liddell, P.A., hereby serves its Responses and Objections to Plaintiff Ridgemark Development Partners LLC's ("Ridgemark" or "Plaintiff") First Set of Interrogatories (Nos. 1–20) and First Requests for Production (Nos. 1–25), which were served upon Defendant on November 1, 2021, pursuant to Florida Rules of Civil Procedure 1.340 and 1.350. These Responses and Objections are served on December 17, 2021, within the thirty (30) day response period as extended by the parties' agreed-upon written stipulation dated November 16, 2021.
I. PRELIMINARY STATEMENT AND GENERAL OBJECTIONS
A. Reservation of Rights
1. Fairwater objects to each Interrogatory and Request for Production to the extent it calls for, seeks, or would require the disclosure of information or documents protected by the attorney-client privilege, the work-product doctrine (including both fact and opinion work product), the common-interest or joint-defense privilege, or any other applicable privilege, protection, or immunity from disclosure recognized under the laws of the State of Florida, the State of Maryland, or applicable federal law. No response or production made herein is intended to waive, and shall not be construed as a waiver of, any such privilege, protection, or immunity, whether or not a specific objection on the basis of privilege is asserted in response to a particular Interrogatory or Request for Production. Any inadvertent disclosure of privileged or protected information or documents shall not constitute a waiver of any privilege or protection, and Fairwater reserves all rights to seek the return or clawback of any such inadvertently produced materials pursuant to Florida Rule of Civil Procedure 1.285 and applicable case law.
2. Fairwater's Responses and Objections are based upon information and documents reasonably available to Fairwater as of the date hereof, after a diligent search and reasonable inquiry. These Responses do not constitute, and shall not be construed as, an admission that any particular document, information, or category of information is relevant to the subject matter of this action, material to any claim or defense, or admissible in evidence at trial or in any other proceeding.
3. Fairwater reserves the right to amend, modify, supplement, or correct any or all of these Responses and Objections as additional information or documents become available through the ongoing course of discovery, investigation, or otherwise, in accordance with Fairwater's continuing obligations under the Florida Rules of Civil Procedure. The fact that Fairwater has responded or agreed to produce documents in response to any particular Interrogatory or Request for Production shall not be construed as an agreement that such response or production is complete or exhaustive at this time.
4. By responding to any Interrogatory or Request for Production, Fairwater does not waive, and expressly preserves, any objection to the relevance, materiality, competency, admissibility, or discoverability of any information or document provided or identified herein. Fairwater further reserves the right to assert any and all objections, defenses, and privileges at trial, in motions, or in any other proceeding in this action or any related action.
5. Fairwater's investigation and discovery in this matter are continuing, and these Responses are made without prejudice to Fairwater's right to present additional facts, evidence, or arguments at any future stage of this litigation.
B. Objections to Definitions and Instructions
6. Fairwater objects to Ridgemark's Definitions and Instructions accompanying its First Set of Interrogatories and First Requests for Production to the extent such Definitions and Instructions purport to impose obligations on Fairwater that are greater than, broader than, or inconsistent with the obligations imposed by the Florida Rules of Civil Procedure, including but not limited to Rules 1.280, 1.340, 1.350, and 1.380. To the extent there is any conflict between Ridgemark's Definitions and Instructions and the Florida Rules of Civil Procedure, Fairwater will comply with the Florida Rules of Civil Procedure.
7. Fairwater objects to Ridgemark's use of the phrase "all documents" and similar formulations (including "any and all documents," "each and every document," and similar language) as overbroad and unduly burdensome to the extent such language encompasses documents that are not in Fairwater's possession, custody, or control; documents that are equally available to Ridgemark from public records or other sources; documents that are duplicative of documents already in Ridgemark's possession; or documents the identification, location, collection, review, and production of which would impose a burden on Fairwater that is disproportionate to the likely benefit of such production in this action.
8. Fairwater objects to any Definition or Instruction that purports to extend the scope of discovery to time periods beyond those relevant to the claims and defenses at issue in this litigation. The relevant instruments at issue in this declaratory judgment action are the Cross-Parcel Easement recorded June 22, 1998, in Official Records Book 4517, Page 1283, of the Public Records of Seminole County, Florida, and the Commerce Park Boulevard Phase II Replat recorded September 15, 2014, in Plat Book 78, Pages 44–46, of the Public Records of Seminole County, Florida. To the extent any Interrogatory or Request for Production seeks information or documents relating to periods or subjects outside the scope of this dispute, Fairwater objects on the basis of relevance and proportionality.
9. Subject to and without waiving these General Objections, which are incorporated by reference into each specific Response and Objection below as though fully set forth therein, Fairwater responds to Ridgemark's First Set of Interrogatories and First Requests for Production as follows.
II. RESPONSES AND OBJECTIONS TO INTERROGATORIES
INTERROGATORY NO. 1:
Identify the full legal name, entity type, state of organization, and principal place of business of Defendant Fairwater Real Estate Investment Trust, including the names and titles of its principal officers and any parent, subsidiary, or affiliated entities with an ownership interest in or management responsibility for the property at 4250 Commerce Park Boulevard, Sanford, FL 32771.
RESPONSE TO INTERROGATORY NO. 1:
Subject to and without waiving the General Objections set forth above, Fairwater responds as follows:
Defendant's full legal name is Fairwater Real Estate Investment Trust. Fairwater is a Maryland real estate investment trust organized under the laws of the State of Maryland. Fairwater's principal place of business and headquarters is located at 1400 Waverly Park Drive, Suite 600, Bethesda, Maryland 20814. Fairwater is a publicly traded real estate investment trust, with its common shares of beneficial interest listed on the New York Stock Exchange under the ticker symbol "FWTR." As of approximately year-end 2021, Fairwater's approximate market capitalization was $3.8 billion.
Fairwater's portfolio consists of approximately 127 logistics, distribution, and light-industrial properties located across the southeastern United States, totaling approximately 28.4 million rentable square feet. The property at issue in this action, located at 4250 Commerce Park Boulevard, Sanford, Florida 32771 (the "Fairwater Sanford Logistics Center" or the "Property"), is owned directly by Fairwater Real Estate Investment Trust and is not held through a subsidiary or special-purpose entity.
Fairwater's principal officers include: Thomas R. Calloway, Chief Executive Officer and Trustee; Denise M. Whitford, Esq., Executive Vice President and General Counsel; Gerald K. Sung, Senior Vice President, Asset Management; and Rebecca L. Fontaine, Chief Financial Officer. Ms. Whitford serves as the corporate officer with responsibility for legal matters, including the matters at issue in this litigation. Mr. Sung is the senior officer with primary management responsibility for the Fairwater Sanford Logistics Center.
INTERROGATORY NO. 2:
Describe in detail the circumstances of Fairwater's acquisition of the property located at 4250 Commerce Park Boulevard, Sanford, FL 32771, including the date of acquisition, purchase price, identity of the seller, and the terms of any financing obtained in connection with the acquisition.
RESPONSE TO INTERROGATORY NO. 2:
Subject to and without waiving the General Objections set forth above, Fairwater responds as follows:
Fairwater acquired the property known as the Fairwater Sanford Logistics Center, located at 4250 Commerce Park Boulevard, Sanford, Florida 32771 (Seminole County Parcel ID 25-20-30-500-0020-0000), on October 7, 2016. The Property consists of approximately 42.7 acres improved with a 614,000 square foot Class-A cross-dock distribution facility. The facility includes 120 dock-high loading doors, four drive-in ramps, 36-foot clear ceiling height, an ESFR sprinkler system, and approximately 185 trailer parking positions. The Property was fully leased at the time of acquisition to a single tenant, Condor Supply Chain Solutions, Inc.
The seller of the Property was Sunbelt Distribution Centers, Inc., a Florida corporation with its then-principal office located at 2200 Lake Mary Boulevard, Suite 200, Sanford, Florida 32773. Sunbelt Distribution Centers, Inc. has since been dissolved, with the Florida Department of State recording its administrative dissolution effective March 16, 2018. The purchase price for the Property was Forty-Seven Million Three Hundred Thousand Dollars ($47,300,000.00).
The acquisition was financed in part through a term loan in the original principal amount of Twenty-Eight Million Four Hundred Thousand Dollars ($28,400,000.00) from Kensington Capital Markets, LLC, a Delaware limited liability company with its principal office at 590 Madison Avenue, 22nd Floor, New York, New York 10022 (the "Kensington Loan"). The Kensington Loan is secured by a first-priority mortgage and security agreement recorded on October 7, 2016, in Official Records Book 6312, Page 0988, of the Public Records of Seminole County, Florida. The Kensington Loan bears a fixed interest rate of 4.25% per annum on a five (5) year amortization schedule with a ten (10) year term, maturing in October 2026. As of approximately October 2021, the estimated outstanding principal balance on the Kensington Loan was approximately Twenty-Six Million One Hundred Thousand Dollars ($26,100,000.00). The balance of the purchase price was funded with Fairwater's available cash and proceeds from its revolving credit facility.
Gerald K. Sung, Senior Vice President of Asset Management at Fairwater, served as the primary business contact for the acquisition and has ongoing management responsibility for the Fairwater Sanford Logistics Center.
INTERROGATORY NO. 3:
Identify all title examinations, title commitments, title opinions, and title insurance policies obtained by or on behalf of Fairwater in connection with its acquisition of the property at 4250 Commerce Park Boulevard, Sanford, FL 32771, including the name of each issuing entity, the date of issuance, and any applicable commitment, policy, or reference numbers.
RESPONSE TO INTERROGATORY NO. 3:
Subject to and without waiving the General Objections set forth above, Fairwater responds as follows:
In connection with its acquisition of the Fairwater Sanford Logistics Center, Fairwater obtained the following title-related instruments:
(a) A title commitment issued by Tidewater Abstract & Title, LLC, located at 315 West First Street, Sanford, Florida 32771, bearing Commitment No. TWA-2016-09821 (the "Title Commitment"). The Title Commitment was issued in connection with Fairwater's acquisition and set forth the conditions under which Tidewater's underwriter, Meridian Title Underwriters, Inc., would issue an owner's title insurance policy. The Title Commitment did not list the Cross-Parcel Easement recorded June 22, 1998, in Official Records Book 4517, Page 1283, of the Public Records of Seminole County, Florida, as a Schedule B-II exception.
(b) An owner's title insurance policy issued by Meridian Title Underwriters, Inc., located at 4800 Semoran Boulevard, Suite 220, Orlando, Florida 32822, bearing Policy No. MTU-2016-FL-089312 (the "Owner's Policy"). The Owner's Policy was issued with a policy limit of Forty-Seven Million Three Hundred Thousand Dollars ($47,300,000.00), equal to the purchase price of the Property. The Owner's Policy similarly did not list the Cross-Parcel Easement as a Schedule B exception.
Fairwater is not aware of any separate title opinion or title examination report prepared by or for Fairwater in connection with the acquisition beyond the Title Commitment and Owner's Policy described above.
OBJECTION: To the extent this Interrogatory seeks the production of documents reflecting privileged attorney-client communications or attorney work product prepared in connection with the title review process, including any legal memoranda, analyses, or correspondence between Fairwater and its counsel regarding the title commitment, exceptions, or the adequacy of the title search, Fairwater objects and withholds such materials as privileged. A privilege log will be provided in accordance with Florida Rule of Civil Procedure 1.280(b)(6).
INTERROGATORY NO. 4:
State whether the Cross-Parcel Easement recorded on June 22, 1998, in Official Records Book 4517, Page 1283, of the Public Records of Seminole County, Florida, was disclosed to Fairwater at any time before or during its acquisition of the property at 4250 Commerce Park Boulevard, and if so, identify the person or persons who disclosed it, the date on which such disclosure was made, and the substance of each such communication.
RESPONSE TO INTERROGATORY NO. 4:
Subject to and without waiving the General Objections set forth above, Fairwater responds as follows:
The Cross-Parcel Easement recorded on June 22, 1998, in Official Records Book 4517, Page 1283, of the Public Records of Seminole County, Florida, was not specifically identified, referenced, or disclosed to Fairwater as an encumbrance on the Property at any time before or during Fairwater's acquisition of the Property. The Title Commitment (Commitment No. TWA-2016-09821) issued by Tidewater Abstract & Title, LLC did not list the Cross-Parcel Easement as a Schedule B-II exception. The Owner's Policy (Policy No. MTU-2016-FL-089312) issued by Meridian Title Underwriters, Inc. similarly omitted the Cross-Parcel Easement from its schedule of exceptions.
Fairwater is not aware of any communication from the seller, Sunbelt Distribution Centers, Inc., or from any officer, agent, employee, or representative of Sunbelt, that disclosed, referenced, or identified the Cross-Parcel Easement at any time before or during the closing of the acquisition on October 7, 2016. Fairwater is similarly not aware of any communication from Tidewater Abstract & Title, LLC, Meridian Title Underwriters, Inc., or any other party involved in the acquisition that disclosed, referenced, or identified the Cross-Parcel Easement prior to closing.
Fairwater first became aware of the claimed Cross-Parcel Easement upon receipt of a demand letter from Castellon Foley & Ruiz LLP, counsel for Plaintiff Ridgemark Development Partners LLC, dated April 2, 2021. That demand letter asserted, for the first time as to Fairwater, that the Cross-Parcel Easement remained a valid and enforceable encumbrance on the Property and demanded that Fairwater acknowledge and accommodate the easement in connection with Ridgemark's planned development of the adjacent southern parcel.
INTERROGATORY NO. 5:
Describe in detail Fairwater's understanding of the effect, if any, of the Commerce Park Boulevard Phase II Replat recorded September 15, 2014, in Plat Book 78, Pages 44–46, of the Public Records of Seminole County, Florida, on any easements affecting the property at 4250 Commerce Park Boulevard, including but not limited to the Cross-Parcel Easement.
RESPONSE TO INTERROGATORY NO. 5:
Subject to and without waiving the General Objections set forth above, Fairwater responds as follows:
It is Fairwater's position that 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"), vacated all private easements within the boundaries of the replat, including the sixty (60) foot-wide Cross-Parcel Easement originally recorded on June 22, 1998, in Official Records Book 4517, Page 1283, of the Public Records of Seminole County, Florida. The 2014 Replat contains the following express language: "All private easements shown on the prior plat are hereby vacated except as otherwise noted herein." Fairwater contends that the Cross-Parcel Easement fell squarely within the scope of this vacation language and was therefore extinguished by operation of the 2014 Replat.
The 2014 Replat reconfigured the lot lines within the Commerce Park Boulevard Phase II subdivision, dedicated new public rights-of-way, and established new utility and drainage easements, all of which superseded and replaced the easement framework that had existed under the prior plat. Fairwater further contends that the Cross-Parcel Easement, as a private easement shown on or appurtenant to the prior plat, was encompassed within the class of easements vacated by the express language of the 2014 Replat, and that the 2014 Replat made no exception or reservation that would have preserved the Cross-Parcel Easement.
OBJECTION: To the extent this Interrogatory seeks the disclosure of Fairwater's legal analysis, legal conclusions, mental impressions, or litigation strategy regarding the extinguishment of the Cross-Parcel Easement by the 2014 Replat, such analysis is protected by the attorney-client privilege and the work-product doctrine and is not disclosed herein. Fairwater has set forth above the factual basis for its position, without waiving any privilege or protection.
INTERROGATORY NO. 6:
Identify all persons known to Fairwater who have knowledge of the 2014 replat process and the circumstances under which the Commerce Park Boulevard Phase II Replat was recorded on September 15, 2014.
RESPONSE TO INTERROGATORY NO. 6:
Subject to and without waiving the General Objections set forth above, Fairwater responds as follows:
Fairwater did not own the Property at 4250 Commerce Park Boulevard at the time the 2014 Replat was prepared, approved, and recorded. The 2014 Replat was recorded on September 15, 2014, more than two years before Fairwater's acquisition of the Property on October 7, 2016. Accordingly, Fairwater has limited knowledge of the replat process and the specific circumstances under which the 2014 Replat was initiated, approved, and recorded.
Fairwater is informed and believes, based on the public record and information obtained during its 2016 acquisition due diligence, that Sunbelt Distribution Centers, Inc. was the owner of the northern parcel (now the Fairwater Sanford Logistics Center) at the time the 2014 Replat was recorded. Fairwater does not have knowledge of the identities of the specific individuals at Sunbelt Distribution Centers, Inc. who participated in or authorized the replat process. The 2014 Replat was recorded by and through the Seminole County Clerk of the Circuit Court, and Fairwater understands that the replat process involved review and approval by the Seminole County Development Review Division and the Board of County Commissioners, but Fairwater is not aware of the identities of specific county officials or staff members involved in such review and approval beyond what is reflected in the public record.
To the extent Ridgemark seeks information about the replat process that is within the knowledge of third parties, including former principals of Sunbelt Distribution Centers, Inc. (dissolved 2018) or Seminole County officials, Fairwater directs Ridgemark to the public records of Seminole County, Florida, and to Sunbelt Distribution Centers, Inc. or its former principals, whose identities may be ascertained through the Florida Department of State, Division of Corporations.
INTERROGATORY NO. 7:
Identify all communications between Fairwater and any governmental authority, including but not limited to Seminole County, the City of Sanford, or the State of Florida, regarding the Cross-Parcel Easement, the 2014 Replat, or any easement affecting the property at 4250 Commerce Park Boulevard.
RESPONSE TO INTERROGATORY NO. 7:
Subject to and without waiving the General Objections set forth above, Fairwater responds as follows:
Fairwater is not aware of any communications between Fairwater (or any officer, employee, agent, or representative of Fairwater) and any governmental authority, including Seminole County, the City of Sanford, the State of Florida, or any department, division, board, commission, or agency thereof, specifically regarding the Cross-Parcel Easement or the 2014 Replat. Fairwater has not petitioned, requested, initiated, or participated in any governmental action, proceeding, or review concerning the Cross-Parcel Easement, the 2014 Replat, or any easement affecting the Property at 4250 Commerce Park Boulevard.
Fairwater acknowledges that, in the ordinary course of property ownership and facility management, it has had routine communications with governmental authorities regarding permitting, zoning compliance, building inspections, stormwater management, and similar matters relating to the Property, but none of those communications specifically concerned the Cross-Parcel Easement or the 2014 Replat.
INTERROGATORY NO. 8:
Describe in detail the terms of any lease between Fairwater and Condor Supply Chain Solutions, Inc. (or any affiliate thereof) for all or any portion of the property at 4250 Commerce Park Boulevard, including the lease term, commencement and expiration dates, rental rate, base rent, tenant improvement allowances, and any provisions relating to ingress, egress, access, easements, or encumbrances.
RESPONSE TO INTERROGATORY NO. 8:
Subject to and without waiving the General Objections set forth above, Fairwater responds as follows:
Fairwater entered into a triple-net (NNN) lease agreement (the "Condor Lease") with Condor Supply Chain Solutions, Inc. ("Condor"), a Delaware corporation headquartered at 7100 Logistics Parkway, Suite 400, Memphis, Tennessee 38118, for the entirety of the 614,000 square foot cross-dock distribution facility located at 4250 Commerce Park Boulevard, Sanford, Florida 32771. The Condor Lease was assigned to Fairwater as part of the October 7, 2016 acquisition and was originally executed between Sunbelt Distribution Centers, Inc. (as landlord) and Condor.
The material terms of the Condor Lease are as follows:
(a) Lease Term: The Condor Lease has a twelve (12) year term, commencing in October 2016 and expiring in September 2028.
(b) Rental Rate and Base Rent: The annual base rent under the Condor Lease is $3.89 per rentable square foot, resulting in a total annual base rent of approximately Two Million Three Hundred Eighty-Six Thousand Four Hundred Sixty Dollars ($2,386,460.00) for the 614,000 square foot facility.
(c) NNN Structure: The Condor Lease is structured as a triple-net lease, under which the tenant, Condor, is responsible for all operating expenses associated with the Property, including real estate taxes, insurance, and common area maintenance costs.
(d) Ingress, Egress, and Truck-Court Access: The Condor Lease grants Condor exclusive control over the truck-court areas, loading docks, and vehicular ingress and egress points on the Property. Fairwater understands that these provisions were negotiated by Condor to ensure unimpeded access for tractor-trailer and freight operations, which are central to Condor's distribution and supply-chain operations at the facility. The exclusive truck-court provisions would, in Fairwater's understanding, render any additional easement-based traffic across the Property operationally problematic and potentially in conflict with Condor's leasehold rights.
OBJECTION: Fairwater objects to producing the full Condor Lease agreement to the extent it contains commercially sensitive terms, financial provisions, renewal options, expansion rights, and other business terms that are unrelated to the easement dispute at issue in this action. Subject to and without waiving this objection, and subject to entry of an appropriate confidentiality agreement or protective order, Fairwater will produce redacted copies of the relevant provisions of the Condor Lease relating to access, ingress, egress, easement provisions, exclusive-use provisions, and landlord consent rights.
INTERROGATORY NO. 9:
Identify all communications between Fairwater (including any officer, employee, agent, or representative thereof) and Condor Supply Chain Solutions, Inc. (including any officer, employee, agent, or representative thereof) regarding the Cross-Parcel Easement, shared access to the property, or any easement or encumbrance affecting the property at 4250 Commerce Park Boulevard.
RESPONSE TO INTERROGATORY NO. 9:
Subject to and without waiving the General Objections set forth above, Fairwater responds as follows:
Fairwater is aware of communications between Fairwater personnel and Condor Supply Chain Solutions, Inc. personnel regarding the Cross-Parcel Easement claim and the prospect of shared-access arrangements affecting the Fairwater Sanford Logistics Center. In particular, Nathan H. Brierly, Vice President of Real Estate at Condor Supply Chain Solutions, Inc., communicated written opposition to shared-access arrangements that would affect the truck-court areas and vehicular circulation on the Property. Those communications were directed to Gerald K. Sung, Senior Vice President of Asset Management at Fairwater.
Fairwater acknowledges that its communications with Condor regarding the Cross-Parcel Easement dispute and proposed shared-access arrangements are responsive to this Interrogatory.
OBJECTION: However, to the extent that such communications between Fairwater and Condor involve, reflect, reference, quote, summarize, or were made at the direction of or in consultation with counsel for Fairwater, such communications are protected by the attorney-client privilege and/or the work-product doctrine, and Fairwater objects to their disclosure on that basis. Fairwater will provide a privilege log identifying any such withheld communications as required by Florida Rule of Civil Procedure 1.280(b)(6). Non-privileged responsive communications between Fairwater and Condor regarding the Cross-Parcel Easement and shared-access arrangements will be produced in connection with Fairwater's responses to the corresponding Requests for Production.
INTERROGATORY NO. 10:
State whether Fairwater has tendered the defense of this action to any title insurer or other insurer, and if so, identify the insurer, the applicable policy number, the date of tender, and the current status of the tender, including whether coverage has been accepted, denied, or is subject to a reservation of rights.
RESPONSE TO INTERROGATORY NO. 10:
Subject to and without waiving the General Objections set forth above, Fairwater responds as follows:
Fairwater tendered the defense of this declaratory judgment action to Meridian Title Underwriters, Inc., located at 4800 Semoran Boulevard, Suite 220, Orlando, Florida 32822, on August 6, 2021, pursuant to the owner's title insurance Policy No. MTU-2016-FL-089312, which was issued in connection with Fairwater's acquisition of the Property and carries a policy limit of Forty-Seven Million Three Hundred Thousand Dollars ($47,300,000.00).
Meridian Title Underwriters, Inc. acknowledged receipt of Fairwater's tender by letter dated August 19, 2021. On September 10, 2021, Meridian issued a Reservation of Rights letter, in which Meridian reserved its right to deny coverage under certain circumstances, citing potential application of Policy Exclusion 3(a), which pertains to "matters created, suffered, assumed, or agreed to by the insured." The Reservation of Rights letter was issued by Owen R. Hatch, Senior Claims Counsel at Meridian Title Underwriters, Inc. As of the date of these Responses, December 17, 2021, no final coverage determination has been issued by Meridian, and the matter remains subject to Meridian's Reservation of Rights.
OBJECTION: Fairwater objects to the extent this Interrogatory seeks information protected by the attorney-client privilege or the work-product doctrine, including but not limited to Fairwater's internal and external counsel's analysis of the Reservation of Rights, Fairwater's legal strategy with respect to the title insurance coverage dispute, and communications between Fairwater's counsel and Meridian's claims counsel, Owen R. Hatch. A privilege log will be provided as required.
INTERROGATORY NO. 11:
Describe the current physical condition of the area within the alleged sixty (60) foot-wide Cross-Parcel Easement corridor along the eastern boundary of the property at 4250 Commerce Park Boulevard, including any structures, improvements, paving, fencing, landscaping, utilities, or obstructions located within or encroaching upon the corridor.
RESPONSE TO INTERROGATORY NO. 11:
Subject to and without waiving the General Objections set forth above, Fairwater responds as follows:
The area described as the alleged sixty (60) foot-wide Cross-Parcel Easement corridor along the eastern boundary of the Fairwater Sanford Logistics Center currently includes, and is occupied by, portions of the paved truck court serving the 614,000 square foot cross-dock distribution facility, loading dock areas, concrete apron and turning areas necessary for tractor-trailer maneuvering, landscape buffer areas containing trees and shrubs, and stormwater management infrastructure, including drainage swales and retention areas that are integral to the Property's stormwater management system and Seminole County's stormwater permitting requirements.
These improvements and infrastructure elements are integral to the ongoing operation of the distribution facility by Condor Supply Chain Solutions, Inc. and have been in continuous use since at least October 2016, when Fairwater acquired the Property and Condor commenced operations under the Condor Lease. Fairwater believes, based on its review of available records and the physical condition of the Property, that the eastern boundary area has been materially altered from whatever configuration may have existed in 1998 when the original Cross-Parcel Easement was recorded. The truck court, loading dock areas, and stormwater infrastructure were constructed as part of the original development of the 614,000 square foot distribution facility and were in place at the time of Fairwater's acquisition.
INTERROGATORY NO. 12:
Identify the appraised value of the property at 4250 Commerce Park Boulevard and identify all appraisals of the property obtained by or on behalf of Fairwater since its acquisition of the property in October 2016.
RESPONSE TO INTERROGATORY NO. 12:
Subject to and without waiving the General Objections set forth above, Fairwater responds as follows:
The Fairwater Sanford Logistics Center was most recently appraised at Fifty-One Million Eight Hundred Thousand Dollars ($51,800,000.00) as of January 2021. The appraisal was prepared by Lakebridge Valuation Group, LLC, located at 1020 West Morse Boulevard, Winter Park, Florida 32789. The implied capitalization rate at the appraised value, based on the Property's net operating income of approximately $2,386,460.00 per year (representing the annual base rent under the triple-net Condor Lease), is approximately 4.61%.
OBJECTION: Fairwater objects to this Interrogatory to the extent it seeks the identification or production of appraisals prepared for loan refinancing, internal portfolio valuation, or other purposes unrelated to this litigation, on the grounds that such appraisals are not relevant to the easement dispute at issue in this action and may contain commercially sensitive information regarding Fairwater's internal valuation methodologies, portfolio strategy, and financial condition. Fairwater will produce the January 2021 Lakebridge appraisal as identified above, subject to an appropriate confidentiality agreement or protective order.
INTERROGATORY NO. 13:
Identify and describe the material terms of the loan from Kensington Capital Markets, LLC secured by the property at 4250 Commerce Park Boulevard, including the original principal amount, current outstanding balance, interest rate, maturity date, and any provisions of the loan documents relating to easements, encumbrances, title defects, or the borrower's obligation to maintain clear title to the property.
RESPONSE TO INTERROGATORY NO. 13:
Subject to and without waiving the General Objections set forth above, Fairwater responds as follows:
Fairwater's acquisition of the Fairwater Sanford Logistics Center was financed in part by a term loan in the original principal amount of Twenty-Eight Million Four Hundred Thousand Dollars ($28,400,000.00) from Kensington Capital Markets, LLC, a Delaware limited liability company with its principal office at 590 Madison Avenue, 22nd Floor, New York, New York 10022 (the "Kensington Loan"). The Kensington Loan is secured by a first-priority mortgage and security agreement recorded on October 7, 2016, in Official Records Book 6312, Page 0988, of the Public Records of Seminole County, Florida.
The material financial terms of the Kensington Loan include a fixed interest rate of 4.25% per annum, a five (5) year amortization schedule, and a ten (10) year term, with a maturity date in October 2026. As of approximately October 2021, the estimated outstanding principal balance on the Kensington Loan was approximately Twenty-Six Million One Hundred Thousand Dollars ($26,100,000.00).
OBJECTION: Fairwater objects to producing the full loan agreement, promissory note, and related loan documents to the extent they contain commercially sensitive financial covenants, default provisions, cash management and reserve requirements, prepayment provisions, and other terms that are unrelated to the Cross-Parcel Easement dispute at issue in this action. Subject to and without waiving this objection, and subject to entry of an appropriate confidentiality agreement or protective order, Fairwater will produce the recorded mortgage and those specific provisions of the Kensington Loan documents that relate to title, easements, encumbrances, or title defects.
INTERROGATORY NO. 14:
Describe the chain of title for the property at 4250 Commerce Park Boulevard, Sanford, FL 32771, from June 22, 1998 (the date the Cross-Parcel Easement was recorded) to the present, identifying each owner, the dates of ownership, and the recording information for each conveyance.
RESPONSE TO INTERROGATORY NO. 14:
Subject to and without waiving the General Objections set forth above, Fairwater responds as follows:
Based on Fairwater's knowledge, information, and belief, derived from its acquisition due diligence and review of available public records, the chain of title for the property at 4250 Commerce Park Boulevard, Sanford, Florida 32771 (the northern parcel, Seminole County Parcel ID 25-20-30-500-0020-0000) from June 22, 1998, to the present is as follows:
(a) Thurmond Industrial Holdings, Inc.: At the time the Cross-Parcel Easement was recorded on June 22, 1998, in Official Records Book 4517, Page 1283, of the Public Records of Seminole County, Florida, the northern parcel was owned by Thurmond Industrial Holdings, Inc., a Florida corporation. Thurmond Industrial Holdings, Inc. was an entity controlled by Roland P. Thurmond. Thurmond Industrial Holdings, Inc. was administratively dissolved by the Florida Department of State in approximately 2005.
(b) Sunbelt Distribution Centers, Inc.: The northern parcel was subsequently conveyed to Sunbelt Distribution Centers, Inc., a Florida corporation, which was the grantee named in the 1998 Cross-Parcel Easement deed. The precise date and recording information for the conveyance from Thurmond Industrial Holdings, Inc. to Sunbelt Distribution Centers, Inc. is available from the Public Records of Seminole County. Sunbelt Distribution Centers, Inc. owned the northern parcel through the time of the 2014 Replat (Plat Book 78, Pages 44–46) and continued to own it until Fairwater's acquisition in 2016.
(c) Common Thurmond Family Ownership (approximately 2012–2014): Fairwater is informed and believes, based on information obtained during its 2016 acquisition due diligence, that both the northern parcel and the southern parcel (now owned by Ridgemark) were briefly under common ownership or control of the Thurmond family or Thurmond-affiliated entities between approximately 2012 and 2014. This period of common ownership forms the basis for Fairwater's merger affirmative defense, as asserted in Fairwater's Answer and Affirmative Defenses filed August 30, 2021.
(d) Fairwater Real Estate Investment Trust: Fairwater acquired the northern parcel from Sunbelt Distribution Centers, Inc. on October 7, 2016, for a purchase price of $47,300,000.00. The special warranty deed was recorded in the Public Records of Seminole County, Florida, on October 7, 2016. Fairwater has continuously owned the Property since that date.
OBJECTION: Fairwater objects to this Interrogatory to the extent it calls for Fairwater to compile a complete chain of title from public records that are equally available to both parties. The Public Records of Seminole County, Florida, including the Official Records and Plat Books maintained by the Clerk of the Circuit Court, contain the complete chain of title for the Property and are accessible to Ridgemark. Fairwater has provided the information within its knowledge and directs Ridgemark to the Public Records for a full and complete chain of title.
INTERROGATORY NO. 15:
State whether Fairwater was aware at the time of its October 2016 acquisition that the southern parcel (Seminole County Parcel ID 25-20-30-500-0030-0000), which is adjacent to the eastern boundary of the Fairwater property, lacked adequate access to a public right-of-way other than through the alleged sixty (60) foot-wide Cross-Parcel Easement corridor.
RESPONSE TO INTERROGATORY NO. 15:
Subject to and without waiving the General Objections set forth above, Fairwater responds as follows:
Fairwater was not aware at the time of its October 2016 acquisition of any claimed inadequacy of access to the southern parcel (Seminole County Parcel ID 25-20-30-500-0030-0000). The Cross-Parcel Easement was not disclosed to Fairwater during the acquisition process, was not listed in the Title Commitment (TWA-2016-09821) issued by Tidewater Abstract & Title, LLC, and was not reflected as an exception in the Owner's Policy (MTU-2016-FL-089312) issued by Meridian Title Underwriters, Inc.
Fairwater's acquisition due diligence was focused on the northern parcel (the Fairwater Sanford Logistics Center) and the existing Condor Lease. Fairwater did not undertake any analysis of the access conditions, entitlements, or development potential of the adjacent southern parcel as part of its due diligence. Fairwater denies any knowledge of, or responsibility for, the access conditions of the southern parcel at the time of or subsequent to its 2016 acquisition.
INTERROGATORY NO. 16:
Identify all surveys obtained by or on behalf of Fairwater in connection with its 2016 acquisition of the property at 4250 Commerce Park Boulevard, and describe what, if any, easements, encumbrances, or other matters were depicted on such surveys.
RESPONSE TO INTERROGATORY NO. 16:
Subject to and without waiving the General Objections set forth above, Fairwater responds as follows:
In connection with its 2016 acquisition of the Fairwater Sanford Logistics Center, Fairwater obtained an ALTA/NSPS Land Title Survey of the Property. The ALTA/NSPS survey was prepared in connection with the issuance of the Title Commitment and Owner's Policy and was relied upon by Fairwater and its lender, Kensington Capital Markets, LLC, in connection with the acquisition and financing of the Property.
Fairwater will produce a copy of the ALTA/NSPS survey. Based on Fairwater's review, the survey did not depict the Cross-Parcel Easement as an encumbrance on the Property, which is consistent with the omission of the Cross-Parcel Easement from both the Title Commitment and the Owner's Policy.
INTERROGATORY NO. 17:
Describe any and all efforts undertaken by Fairwater to investigate the history or current status of easements affecting the property at 4250 Commerce Park Boulevard, either prior to or since its acquisition of the property in October 2016.
RESPONSE TO INTERROGATORY NO. 17:
Subject to and without waiving the General Objections set forth above, Fairwater responds as follows:
In connection with its 2016 acquisition, Fairwater relied on the standard title search and examination conducted by Tidewater Abstract & Title, LLC, as reflected in the Title Commitment (TWA-2016-09821), and on the Owner's Policy (MTU-2016-FL-089312) issued by Meridian Title Underwriters, Inc. Fairwater also obtained the ALTA/NSPS survey described in its Response to Interrogatory No. 16. Fairwater did not conduct any independent investigation of the history of easements affecting the Property beyond the standard title search conducted by Tidewater as part of the acquisition process.
Since receipt of Ridgemark's demand letter dated April 2, 2021, from Castellon Foley & Ruiz LLP, Fairwater has engaged its litigation counsel, Calderwood & Harkness LLP and Hargrove & Liddell, P.A., to investigate the history and status of the Cross-Parcel Easement and to defend against Ridgemark's claims in this action. The substance, findings, and analysis of counsel's investigation are protected by the attorney-client privilege and the work-product doctrine and are not disclosed herein.
INTERROGATORY NO. 18:
For each affirmative defense asserted in Fairwater's Answer and Affirmative Defenses filed on August 30, 2021, state the factual basis for the affirmative defense, identify all persons with knowledge of the facts supporting the affirmative defense, and identify all documents that support the affirmative defense.
RESPONSE TO INTERROGATORY NO. 18:
Subject to and without waiving the General Objections set forth above, Fairwater responds as follows:
The factual bases for Fairwater's affirmative defenses, as asserted in its Answer and Affirmative Defenses filed August 30, 2021, are set forth below:
(a) Extinguishment by Replat: Fairwater's First Affirmative Defense asserts that the Cross-Parcel Easement was extinguished by 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 contains express language vacating "all private easements shown on the prior plat" except as otherwise noted therein. Fairwater contends that the Cross-Parcel Easement was a private easement within the scope of this vacation language and was extinguished upon the recording of the 2014 Replat. The 2014 Replat is a public record and constitutes the primary document supporting this affirmative defense.
(b) Estoppel and Laches: Fairwater's Second Affirmative Defense asserts that Ridgemark's claims are barred, in whole or in part, by the equitable doctrines of estoppel and laches. Ridgemark's predecessor in interest, Roland P. Thurmond and/or the Estate of Roland P. Thurmond, took no action to assert, preserve, or enforce the Cross-Parcel Easement for over six (6) years following the recording of the 2014 Replat, which purported to vacate the easement. Ridgemark acquired the southern parcel in approximately March 2019 and did not assert the Cross-Parcel Easement claim until April 2, 2021, nearly seven (7) years after the recording of the 2014 Replat and nearly five (5) years after Fairwater's acquisition of the northern parcel. During that period, Fairwater acquired the Property, invested in its maintenance and operation, and entered into the Condor Lease, all in reliance on the absence of any disclosed or recorded easement encumbrance. Fairwater has been prejudiced by the delay in asserting the easement claim.
(c) Merger: Fairwater's Third Affirmative Defense asserts that the Cross-Parcel Easement was extinguished by merger when the dominant estate (the southern parcel) and the servient estate (the northern parcel) came under common ownership or control of the Thurmond family or Thurmond-affiliated entities between approximately 2012 and 2014. Under the common-law doctrine of merger, an easement is extinguished when the dominant and servient estates come into common ownership, and the easement does not automatically revive upon subsequent separation of the estates. Fairwater is informed and believes that both parcels were owned by Thurmond family interests during the relevant period, though the precise conveyance records are available from the Public Records of Seminole County.
(d) Failure to State a Cause of Action: Fairwater's Fourth Affirmative Defense asserts that the Complaint fails to state a cause of action upon which declaratory relief can be granted. Fairwater contends that Ridgemark has not alleged facts sufficient to establish the continued existence and enforceability of the Cross-Parcel Easement in light of the 2014 Replat and the merger of the dominant and servient estates.
OBJECTION: Fairwater objects to this Interrogatory to the extent it seeks the disclosure of attorney-client privileged communications, mental impressions, legal theories, legal conclusions, or attorney work product. Fairwater's legal analysis supporting its affirmative defenses is privileged and protected from disclosure. Fairwater has set forth the factual basis for its affirmative defenses to the extent required by the Florida Rules of Civil Procedure, without waiving any privilege or protection.
INTERROGATORY NO. 19:
Identify all persons Fairwater expects to call as witnesses at trial, including lay witnesses and expert witnesses, and for each such witness, state the subject matter of the witness's expected testimony and a summary of the facts and opinions to which the witness is expected to testify.
RESPONSE TO INTERROGATORY NO. 19:
Subject to and without waiving the General Objections set forth above, Fairwater objects to this Interrogatory as premature. Discovery in this action is ongoing, and no trial date has been set by the Court. No scheduling order has been entered establishing deadlines for the disclosure of trial witnesses or the exchange of witness lists. Fairwater has not yet finalized its trial witness list and reserves the right to identify and disclose its trial witnesses in accordance with the Court's scheduling order, once one is entered, and in compliance with all applicable deadlines established therein.
INTERROGATORY NO. 20:
Identify all expert witnesses Fairwater expects to retain in connection with this action, and for each such expert, state the subject matter of the expert's expected testimony, the expert's qualifications, and the substance of the facts and opinions to which the expert is expected to testify.
RESPONSE TO INTERROGATORY NO. 20:
Subject to and without waiving the General Objections set forth above, Fairwater objects to this Interrogatory as premature. No expert witnesses have been retained by Fairwater at this time. Fairwater reserves the right to retain one or more expert witnesses in connection with this action, which may include, but are not limited to, a licensed professional surveyor, a title examination expert, and/or a real property appraiser. Fairwater will disclose its expert witnesses, together with the information required by the Florida Rules of Civil Procedure, in accordance with the Court's scheduling order, once one is entered.
III. RESPONSES AND OBJECTIONS TO REQUESTS FOR PRODUCTION
REQUEST FOR PRODUCTION NO. 1:
Produce all documents relating to Fairwater's acquisition of the property at 4250 Commerce Park Boulevard, Sanford, FL 32771, including but not limited to the purchase and sale agreement, closing statement, deed, title commitment, title insurance policy, surveys, environmental reports, structural inspection reports, and all other due diligence materials.
RESPONSE TO REQUEST FOR PRODUCTION NO. 1:
OBJECTION: Fairwater objects to this Request as overbroad and unduly burdensome to the extent the phrase "all due diligence materials" encompasses thousands of pages of environmental reports, Phase I and Phase II environmental site assessments, structural and engineering inspection reports, property condition assessments, financial analyses, market studies, internal investment committee memoranda, and other materials that are unrelated to the Cross-Parcel Easement dispute at issue in this action. The burden and expense of collecting, reviewing, and producing the entirety of Fairwater's acquisition due diligence files would be disproportionate to the likely benefit of such production in the context of this declaratory judgment action, which concerns the existence and enforceability of a single recorded easement. Fairwater further objects to the extent this Request seeks documents reflecting attorney-client privileged communications or attorney work product prepared in connection with the acquisition, including legal memoranda, risk assessments, and counsel's analysis of title matters.
Subject to and without waiving these objections, Fairwater will produce the following non-privileged documents responsive to this Request: (a) the special warranty deed conveying the Property to Fairwater; (b) the closing statement (HUD-1 or equivalent settlement statement); and (c) documents specifically relating to title examination, title commitment, title insurance, easements, and encumbrances, including the Title Commitment (TWA-2016-09821) and Owner's Policy (MTU-2016-FL-089312) identified in Fairwater's Responses to Interrogatories Nos. 3 and 4. Documents reflecting attorney-client privileged communications or work product are withheld, and a privilege log will be provided in accordance with Florida Rule of Civil Procedure 1.280(b)(6).
REQUEST FOR PRODUCTION NO. 2:
Produce the title commitment (Commitment No. TWA-2016-09821) issued by Tidewater Abstract & Title, LLC in connection with Fairwater's acquisition of the property.
RESPONSE TO REQUEST FOR PRODUCTION NO. 2:
Subject to and without waiving the General Objections set forth above, Fairwater will produce a copy of the title commitment issued by Tidewater Abstract & Title, LLC, bearing Commitment No. TWA-2016-09821, including all schedules and exhibits thereto. Fairwater notes that the Title Commitment did not list the Cross-Parcel Easement recorded June 22, 1998, in Official Records Book 4517, Page 1283, as a Schedule B-II exception.
REQUEST FOR PRODUCTION NO. 3:
Produce the owner's title insurance policy (Policy No. MTU-2016-FL-089312) issued by Meridian Title Underwriters, Inc. in connection with Fairwater's acquisition of the property.
RESPONSE TO REQUEST FOR PRODUCTION NO. 3:
Subject to and without waiving the General Objections set forth above, Fairwater will produce a copy of the owner's title insurance policy issued by Meridian Title Underwriters, Inc., bearing Policy No. MTU-2016-FL-089312, including all schedules, endorsements, and exhibits thereto. The Owner's Policy was issued with a policy limit of $47,300,000.00 and omitted the Cross-Parcel Easement from its schedule of exceptions.
REQUEST FOR PRODUCTION NO. 4:
Produce all correspondence, communications, and documents exchanged between Fairwater and Meridian Title Underwriters, Inc. regarding the tender of defense of this action, the Reservation of Rights issued by Meridian, and the status of any coverage determination.
RESPONSE TO REQUEST FOR PRODUCTION NO. 4:
OBJECTION: Fairwater objects to this Request to the extent it seeks documents protected by the attorney-client privilege or the work-product doctrine, including but not limited to counsel's analysis of the Reservation of Rights issued by Meridian Title Underwriters, Inc., Fairwater's legal strategy with respect to the title insurance coverage dispute, and communications between Fairwater's counsel (Calderwood & Harkness LLP and Hargrove & Liddell, P.A.) and Meridian's claims counsel, Owen R. Hatch, Senior Claims Counsel, that reflect or incorporate legal advice, mental impressions, or litigation strategy.
Subject to and without waiving this objection, Fairwater will produce the following non-privileged documents responsive to this Request:
(a) Fairwater's tender letter to Meridian Title Underwriters, Inc., dated August 6, 2021;
(b) Meridian's acknowledgment of receipt of the tender, dated August 19, 2021; and
(c) Meridian's Reservation of Rights letter, dated September 10, 2021, which cited potential application of Policy Exclusion 3(a) (matters created, suffered, assumed, or agreed to by the insured).
Privileged communications between Fairwater, Fairwater's counsel, and Meridian's claims counsel will be withheld and identified on a privilege log in accordance with Florida Rule of Civil Procedure 1.280(b)(6).
REQUEST FOR PRODUCTION NO. 5:
Produce all documents relating to the Kensington Capital Markets, LLC mortgage on the property, including the loan agreement, promissory note, mortgage and security agreement, and any amendments, modifications, or supplements thereto.
RESPONSE TO REQUEST FOR PRODUCTION NO. 5:
OBJECTION: Fairwater objects to this Request to the extent it seeks the production of the full loan agreement, promissory note, and related loan documents, which contain commercially sensitive financial terms, including financial covenants, debt service coverage ratios, default provisions, cash management and reserve requirements, prepayment terms, and other business provisions that are unrelated to the Cross-Parcel Easement dispute at issue in this action. Disclosure of these commercially sensitive terms would cause competitive harm to Fairwater and is not proportional to the needs of this case.
Subject to and without waiving this objection, and subject to entry of an appropriate confidentiality agreement or protective order, Fairwater will produce: (a) the recorded mortgage and security agreement (Official Records Book 6312, Page 0988, of the Public Records of Seminole County, Florida); and (b) those specific provisions of the Kensington Loan documents that relate to title, easements, encumbrances, or title defects, including any representations, warranties, or covenants by the borrower regarding title matters.
REQUEST FOR PRODUCTION NO. 6:
Produce all surveys, plats, and site plans of the property at 4250 Commerce Park Boulevard obtained by or in the possession, custody, or control of Fairwater.
RESPONSE TO REQUEST FOR PRODUCTION NO. 6:
Subject to and without waiving the General Objections set forth above, Fairwater will produce the ALTA/NSPS Land Title Survey obtained in connection with Fairwater's 2016 acquisition of the Property, as identified in Fairwater's Response to Interrogatory No. 16. Fairwater will also produce any site plans in its possession, custody, or control that depict the eastern boundary area of the Property, including the area described as the alleged Cross-Parcel Easement corridor, subject to redaction of proprietary tenant-related information (such as Condor's racking layouts, security configurations, and other operational details) that is unrelated to the easement dispute.
REQUEST FOR PRODUCTION NO. 7:
Produce the Commerce Park Boulevard Phase II Replat recorded September 15, 2014, in Plat Book 78, Pages 44–46, of the Public Records of Seminole County, Florida, and all documents in Fairwater's possession, custody, or control relating to the replat, including any correspondence, approvals, applications, or staff reports.