IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT … · beach condominium association, inc., casa...

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Beasley & Demos, LLC, 2950 S.W. 27

th Avenue, Suite 100, Miami, FL 33133 – 305- 669-3131

IN THE CIRCUIT COURT OF THE 20TH

JUDICIAL CIRCUIT IN AND FOR LEE

COUNTY, FLORIDA

CIRCUIT CIVIL DIVISION

NO. 13 –CA-001057 CLARK L. DURPO, JR. and CLARK L. DURPO,

Plaintiffs, v. BELLA LAGO CONDOMINIUM AT BAY BEACH CONDOMINIUM ASSOCIATION, INC., CASA MARINA ASSOCIATION, INC., CASA MARINA II CONDOMINIUM ASSOCIATION, INC., CASA MARINA III CONDOMINIUM ASSOCIATION, INC., HARBOUR POINTE CONDOMINIUM ASSOCIATION, INC., HIBISCUS POINTE CONDOMINIUM ASSOCIATION, INC., MANATEE BAY AT BAY BEACH CONDOMINIUM ASSOCIATION, INC., ROYAL PELICAN ASSOCIATION, INC., SUNSET GULF CONDOMINIUM ASSOCIATION, INC., THE PALMS OF BAY BEACH CONDOMINIUM ASSOCIATION, INC., VALENCIA VILLAS AT BAY BEACH ASSOCIATION, INC., WATERSIDE I AT BAY BEACH CONDOMINIUM ASSOCIATION, INC., WATERSIDE II AT BAY BEACH CONDOMINIUM ASSOCIATION, INC., WATERSIDE III AT BAY BEACH CONDOMINIUM ASSOCIATION, INC., WATERSIDE IV AT BAY BEACH CONDOMINIUM ASSOCIATION, INC., WATERSIDE V AT BAY BEACH CONDOMINIUM ASSOCIATION, INC., WATERSIDE MANATEE BAY HOLDINGS, LLC, all Florida corporations, and SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

Defendants. _______________________________________/

ANSWER AND AFFIRMATIVE DEFENSES TO COUNTERCLAIM AND MOTION TO STRIKE CLAIM FOR ATTORNEYS’ FEES

Plaintiffs/Counter-Defendants, CLARK L. DURPO, JR. (“Chip Durpo”) and CLARK L.

DURPO (“Clark Durpo”), collectively (the “Durpos”) by and through their undersigned

Filing # 9528854 Electronically Filed 01/24/2014 03:10:34 PM

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counsel, hereby file their Answer and Affirmative Defenses to the Counterclaim filed by

Counter-Plaintiffs/Defendants: BELLA LAGO CONDOMINIUM AT BAY BEACH

CONDOMINIUM ASSOCIATION, INC., CASA MARINA ASSOCIATION, INC., CASA

MARINA II CONDOMINIUM ASSOCIATION, INC., CASA MARINA III CONDOMINIUM

ASSOCIATION, INC., HARBOUR POINTE CONDOMINIUM ASSOCIATION, INC.,

HIBISCUS POINTE CONDOMINIUM ASSOCIATION, INC., MANATEE BAY AT BAY

BEACH CONDOMINIUM ASSOCIATION, INC., ROYAL PELICAN ASSOCIATION, INC.,

SUNSET GULF CONDOMINIUM ASSOCIATION, INC., THE PALMS OF BAY BEACH

CONDOMINUM ASSOCIATION, INC., VALENCIA VILLAS AT BAY BEACH

ASSOCIATION, INC., WATERSIDE I AT BAY BEACH CONDOMINIUM ASSOCIATION,

INC., WATERSIDE II AT BAY BEACH CONDOMINIUM ASSOCIATION, INC.,

WATERSIDE III AT BAY BEACH CONDOMINIUM ASSOCIATION, INC., WATERSIDE IV

AT BAY BEACH CONDOMINIUM ASSOCIATION, INC., WATERSIDE V AT BAY BEACH

CONDOMINIUM ASSOCIATION, INC., (collectively “Counter-Plaintiffs” or “Defendant

Associations”) and state as follows:

JURISDICTION AND VENUE

1. The allegation in Paragraph 1 is admitted for jurisdiction purposes only.

2. The allegation in Paragraph 2 is admitted only to the extent that

jurisdiction and venue are proper in the Circuit Court in and for the Twentieth Judicial

Circuit, Lee County, Florida. The Durpos deny the remainder of the allegations

contained in Paragraph 2 and demand strict proof thereof.

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SUBSTANTIVE PARTIES

3. The Durpos admit the allegations as to this Counter-Plaintiff’s status as an

owners association governing common areas of a condominium community located on

certain real property in Lee County, Florida. The Durpos are without knowledge as to

the truth or falsity of the remaining allegations contained in Paragraph 3 and therefore

deny them. Further, the Durpos state the attached documents and publicly recorded

documents referenced within this paragraph speak for themselves and are the best

evidence of their terms and contents when read in their entirety and in context, and all

allegations, inferences and conclusions alleged that are inconsistent therewith are

denied.









denied.





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denied.









denied.









denied.

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denied.









denied.






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denied.









denied.









denied.

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denied.









denied.






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denied.









denied.









denied.

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denied.

19. No allegations are contained within Paragraph 19, and therefore, no

answer is required.

20. The Durpos admit the allegation in Paragraph 20.

21. The Durpos admit the allegation in Paragraph 21.

GENERAL ALLEGATIONS

22. The Durpos are without knowledge as to the truth or falsity of the

allegations contained in Paragraph 22 and therefore deny them.

23. The Durpos admit the allegations in the first two sentences of Paragraph

23. The Durpos further state that the attached document speaks for itself and is the best

evidence of its terms and contents when read in its entirety and in context, and all


denied.

24. The Durpos admit that the Counter-Plaintiffs are condominium

associations responsible for various aspects of the condominium properties of their

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respective condominium communities located within Bay Beach near the Golf Course

Property.

25. The Durpos admit they own the property defined by Counter-Plaintiffs as

the “Golf Course Property.”

26. The Durpos admit they acquired the Golf Course Property from Bay Beach

Golf Club, Inc. on or about October 31, 2005 by Warranty Deed. The Durpos state that

the documents attached as Composite Exhibit T speak for themselves and are the best



denied.

27. The Durpos are without knowledge as to whether Exhibit U is a true and

correct copy of what it purports to be, and therefore deny this allegation. To the extend

Exhibit U is a true and correct copy of what it purports to be, the Durpos state the

attached document speaks for itself and is the best evidence of its terms and contents

when read in its entirety and in context, and all allegations, inferences and conclusions

alleged that are inconsistent therewith are denied.


allegations contained in Paragraph 28 and therefore deny them. Further, the Durpos

state the recorded documents referenced within this paragraph, and which are not

attached, speak for themselves and are the best evidence of their terms and contents

when read in their entirety and in context. All allegations, inferences and conclusions

within Paragraph 28 and throughout the Counterclaim allegedly relying on said

documents, but that are inconsistent therewith, are denied.

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state the recorded documents referenced within this paragraph, and which are not

attached, speak for themselves and are the best evidence of their terms and contents

when read in their entirety and in context. All allegations, inferences and conclusions

within Paragraph 28 and throughout the Counterclaim allegedly relying on said

documents, but that are inconsistent therewith, are denied.


allegations contained in Paragraph 31 and therefore deny them. Further, to the extent

the allegations in Paragraph 31 may rely on the Exhibits attached to the Counterclaim,

the Durpos state the attached documents speak for themselves and are the best

evidence of their terms and contents when read in their entirety and in context. All

allegations, inferences and conclusions within Paragraph 31 and throughout the

Counterclaim allegedly relying on said documents, but that are inconsistent therewith,

are denied.

32. The Durpos admit that under the master concept plan, the residential

areas within the DRI and the Golf Course Property were to be served by a unified

surface water management system (the “System”) that was to be developed and to be

operated in accordance with permits issued by the South Florida Water Management

District. The Durpos deny any remaining allegation, or portion thereof, in Paragraph 32

inconsistent with this admission, and deny any implication that such permits or the

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System could or did grant or provide property rights, land use rights or privileges to the

Counter-Plaintiffs absent the required recorded conveyances and agreement between

the Golf Course Property owners and the Defendant Associations.

33. The Durpos admit that under the master concept plan, the residential

areas within the DRI and the Golf Course Property were to be served by a unified

surface water management system (the “System”) that was to be developed and to be

operated in accordance with permits issued by the South Florida Water Management

District. The Durpos deny any implication that they were aware of this system at the

time of purchasing the Golf Course Property and deny any remaining allegation, or

portion thereof, in Paragraph 33 inconsistent with this admission. Further, the Durpos

state the documents in the referenced Composite Exhibit R speak for themselves and

are the best evidence of their terms and contents when read in their entirety and in

context. All allegations, inferences and conclusions within Paragraph 31 and throughout

the Counterclaim allegedly relying on said documents, but that are inconsistent

therewith, are denied, including any and all implication that such permits or the System

could or did grant or provide property rights, land use rights or privileges to the Counter-

Plaintiffs absent the required recorded conveyances and agreement between the Golf

Course Property owners and the Defendant Associations.

34. The Durpos deny the allegations contained in Paragraph 34 and demand

strict proof thereof.

35. The Durpos state the attached Composite Exhibit R speaks for itself and is

the best evidence of its terms and contents when read in its entirety and in context, and

all allegations, inferences and conclusions alleged that are inconsistent therewith are

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denied. The Durpos deny that the Master Plan contained in Composite Exhibit R makes

any reference to the existence of any drainage easements on the Golf Course Property.


allegations contained in Paragraph 36 with regard to the actions taken by Stardial and

as to whether Exhibit W is a true and correct copy of what it purports to be, and

therefore deny them. Further, the Durpos state the referenced permit attached as

Exhibit V speaks for itself and is the best evidence of its terms and contents when read

in its entirety and in context. All allegations, inferences and conclusions alleged in

Paragraph 36 or throughout the Counterclaim that are inconsistent therewith, or that are

based on an incomplete copy of said permit (as modified) and its related application

numbers, are denied. It is further specifically denied that such permits granted the

Counter-Plaintiffs or other person any land use rights, property rights or privileges in the

Golf Course Property, as is made clear by the language in the referenced permits.

37. The Durpos deny the allegations contained in Paragraph 37. The

SFWMD Permit never required the Golf Course Property owners to the sole bearers of

the cost and responsibility of operating and maintaining the System. Operation of the

System within the residential areas was to be the responsibility of the Defendant

Associations. Further, the permits at issue required there to be a binding agreement

between each individual Defendant Association as permittee and the Golf Course

Property owners to pay for the use, operation and maintenance of the System, and the

permits and correspondence from the SFWMD clearly state no land use or property

rights are provided to the permittees by the permits.

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state that the permit and modifications referenced within this paragraph speak for

themselves and are the best evidence of their terms and contents when read in their

entirety and in context, and all allegations, inferences and conclusions alleged that are

inconsistent therewith are denied. The Durpos further state that the SFWMD has stated

that the Defendant Associations failed to timely comply with, and operate, their parts of

the System in accordance with their permits, and, in fact, violated the conditions and

requirements set forth therein.


allegations contained in Paragraph 40 and therefore deny them. The allegations relate

to events and parties that predate the Durpos’ purchase of the Golf Course Property.




Further, the Durpos state that Composite Exhibit V speaks for itself and is the best

evidence of its terms and contents when read in its entirety and in context, and all

allegations, inferences and conclusions alleged that are inconsistent therewith, are

denied.

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Further, the Durpos are without knowledge as to whether Exhibit X is a true and correct

copy of what it purports to be, and therefore deny this allegation. However, to the

extent Exhibit X is a true and correct copy of what it purports to be, Exhibit X speaks for

itself and is the best evidence of its terms and contents when read in its entirety and in

context, and all allegations, inferences and conclusions alleged that are inconsistent

therewith, are denied. The Durpos further state that Exhibit X specifically states, among

other things, that successor owners of the property are not bound by the arbitration or

Decree and SFWMD has stated the award is insufficient to comply with the District’s

requirements for an agreement between, and drainage and access rights to the

respective properties of, the Defendant Associations and the Golf Course Property

owners.




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Further, the Durpos state that Exhibit X speaks for itself and is the best evidence of its

terms and contents when read in its entirety and in context, and all allegations,

inferences and conclusions alleged that are inconsistent therewith, are denied. The

Durpos further state, as recognized in the Decree, it is not binding on successor owners

of the Golf Course Property, and it does not satisfy the SFWMD requirement for

operation of the System.




Further, the Durpos state that Exhibit X speaks for itself and is the best evidence of its

terms and contents when read in its entirety and in context, and all allegations,

inferences and conclusions alleged that are inconsistent therewith, are denied. The

Durpos further state that the Decree and events resulting therefore are irrelevant as the

Durpos were not parties to the arbitration and are not, in any way, bound by it.




Further, the Durpos state that exhibits regarding the sale of the Golf Course Property

speak for themselves and are the best evidence of their terms and contents when read

in their entirety and in context, and all allegations, inferences and conclusions alleged

that are inconsistent therewith, are denied.

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Further, the Durpos are without knowledge as to whether Exhibit Y is a true and correct

copy of what it purports to be, and therefore deny this allegation. However, to the

extent Exhibit Y is a true and correct copy of what it purports to be, the Durpos state

that Exhibit Y, to which the Defendant Associations and the Durpos are not parties,

speaks for itself and is the best evidence of its terms and contents when read in its

entirety and in context, and all allegations, inferences and conclusions alleged that are

inconsistent therewith, are denied. The Durpos further state, as recognized by Decree

and Cost Share Agreement, they do not bind future owners of the Golf Course Property,

do not run with the land and are irrelevant to the Durpos since the agreement was never

recorded in the Public Records of Lee County, which should have been done by the

Defendant Associations’ purported agent, EBIA, so as to put unsuspecting future

purchasers like the Durpos on notice of the issue.

The Durpos deny the unnumbered allegation-heading between paragraphs

49 and 50.

50. The Durpos admit they acquired the Golf Course Property on a date

subsequent to the purported date of execution of Exhibit Y and without notice of same.

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The Durpos deny the remaining allegations contained in Paragraph 50 and demand



strict proof thereof. The Durpos state that the documents referenced are inconsistent

with these allegations in that, among other things, the deeds make no reference to the

SFWMD Permit or Master Plan, and the permits specifically state they do not provide

any property rights or privileges.

52. The Durpos state the allegations of Paragraph 52 regarding “constructive

notice” and “inquiry notice” are conclusions of law, as opposed to statements of fact,

and therefore no response is required. However, to the extent a response might be

required, the Durpos deny the allegations contained in Paragraph 52 and demand strict

proof thereof. The Durpos deny any remaining factual allegations contained in

Paragraph 52 and demand strict proof thereof.

53. The Durpos state the allegations of Paragraph 53 are conclusions of law,

as opposed to statements of fact, and therefore no response is required. However, to

the extent a response might be required, the Durpos deny the allegations contained in






the extent a response might be required and as to any factual allegations in Paragraph

55, the Durpos deny the allegations contained therein and demand strict proof thereof.

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allegations contained in Paragraph 58 as to the machinery utilized in the entire system

as defined in the Counterclaim, and therefore deny them. The Durpos admit they

currently hold the SFWMD Permit and are in control of the operation and maintenance

of the Golf Course Property.


strict proof thereof. The only request for an accounting from the Defendant

Associations or their representatives was made in the early part of 2013 upon learning

of the imminent suit being brought by the Durpos.


strict proof thereof. The only request for an accounting from the Defendant

Associations or their representatives was made in the early part of 2013 upon learning

of the imminent suit being brought by the Durpos.



62. The Durpos deny the allegations contained in Paragraph 62 as phrased.

The Durpos further state that absent the Defendant Associations’ agreement to pay the

fair value for the use of the Durpos’ property and the service required to operate the

System, the Defendant Associations are in violation of their portions of the SFWMD

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Permit and the Durpos are entitled to terminate the Defendant Associations’ dumping of

water and resulting flooding of and continuing trespass on the Durpos’ property.



GENERAL ALLEGATIONS REGARDING DECLARATORY RELIEF

64. The Durpos admit the existence of a bona fide, actual, present and

practical need for the Court’s declaration in this matter. The Durpos deny any remaining

factual allegations contained in Paragraph 64.

65. The Durpos admit the allegations contained in Paragraph 65.

66. The Durpos admit that the rights of the parties hereto are dependent upon

the Court’s judgment. The Durpos deny that the Counterclaim contains a complete

description of the facts upon which the Court will need to rely.




COUNT I – DECLARATORY RELIEF (REASONABLE USE DOCTRINE)

70. The Durpos re-allege their answers to Paragraphs 1-63 above, as if set

forth herein.


72. The Durpos re-allege their answers to Paragraphs to 64-69 above, as if

set forth herein.



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76. The Durpos admit that the improvements to the Defendant Associations’

properties have caused damage to the Golf Course Property. The Durpos state the

allegations of Paragraph 76 are conclusions of law, as opposed to statements of fact,

and therefore no response is required. However, to the extent a response might be

required, the Durpos deny the remaining allegations contained in Paragraph 76 and

demand strict proof thereof.







80. The Durpos admit that a declaratory judgment from the Court is necessary

to declare the respective rights of the parties. The Durpos deny the remaining

allegations contained in Paragraph 80 and demand strict proof thereof.

81. The Durpos deny the allegations contained in Paragraph 81.

The Durpos deny the Counter-Plaintiffs are entitled to any of the relief requested

in the prayer for relief following Paragraph 81, including subparts (a) – (e) therein.

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COUNT II – DECLARATORY RELIEF (IRREVOCABLE LICENSE)

82. The Durpos re-allege their answers to Paragraphs 1 – 63 above, as if set

forth herein.



forth herein.

















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The Durpos deny the Counter-Plaintiffs are entitled to the relief requested in the

prayer for relief following Paragraph 90, including subparts (a) – (e) therein.

COUNT III – DECLARATORY RELIEF (EXPRESS EASEMENT BY GRANT)


forth herein.

92. The Durpos admit the allegations contained Paragraph 92.


forth herein.



95. The Durpos state the Cost Share Agreement referenced in Paragraph 95,

to which the Defendant Associations and the Durpos are not parties, speaks for itself

and is the best evidence of its terms and contents when read in its entirety and in


therewith are denied. The Durpos deny the Cost Share Agreement, to which they are

not parties, has any effect on them or binds any successor owner of the Golf Course

Property, including the Durpos.





therewith are denied. The Durpos deny the Cost share Agreement, to which they are

not a party, provides any easement rights to the Golf Course Property.

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therewith are denied. The Durpos deny the Cost share Agreement, to which they are

not a party, provides any easement rights to the Golf Course Property.





therewith are denied. Further, the Durpos state the allegations of Paragraph 98 contain

conclusions of law, as opposed to statements of fact, and therefore no response is

required. However, to the extent a response might be required, the Durpos deny the

remaining allegations contained in Paragraph 98 and demand strict proof thereof. The

Cost Share Agreement was not recorded and does not bind successor owners of the

property, such as the Durpos, who are not parties to the Cost Share Agreement and

had no notice of same.


allegations contained in Paragraph 99 and therefore deny them. Further, to the extent

Exhibit Z is a true and correct copy of what it purports to be, the documents contained in

Composite Exhibit Z speak for themselves and are the best evidence of their terms and

contents when read in their entirety and in context, and all allegations, inferences and

conclusions alleged that are inconsistent therewith are denied.

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100. The Durpos state the allegations of Paragraph 100 regarding “constructive

notice” are conclusions of law, as opposed to statements of fact, and therefore no

response is required. However, to the extent a response might be required, the Durpos

deny the allegations contained in Paragraph 100 and demand strict proof thereof. The

Durpos deny any remaining factual allegations contained in Paragraph 100 and demand







103. The Durpos deny the allegations contained in Paragraph 103 and are

moving to strike the claim for attorneys’ fees because there is no legally cognizable

basis for recovery against the Durpos.



COUNT IV – DECLARATORY RELIEF (EASEMENT BY NECESSITY)


forth herein.



forth herein.

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COUNT V – DECLARATORY RELIEF (EASEMENT BY IMPLICATION)

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forth herein.



forth herein.




allegations contained in Paragraph 121 and therefore deny them. Further, the

documents contained in Exhibits A - Q speak for themselves and are the best evidence

of their terms and contents when read in their entirety and in context, and all allegations,

inferences and conclusions alleged that are inconsistent therewith are denied.












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COUNT VI – DECLARATORY RELIEF (MUTUAL DRAIN)


forth herein.



forth herein.







133. The Durpos state the allegations of Paragraph 133 regarding

“constructive notice” are conclusions of law, as opposed to statements of fact, and

therefore no response is required. However, to the extent a response might be required,

the Durpos deny the allegations contained in Paragraph 133 and demand strict proof

thereof.

134. The Durpos deny the allegations contained in Paragraph 134 as phrased.

The Durpos further state that absent the Defendant Associations’ agreement to pay the

fair value for the use of the Durpos’ property and the service required to operate the

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System, the Defendant Associations are in violation of their portions of the SFWMD

Permit and the Durpos are entitled to terminate the Defendant Associations’ dumping of

water and resulting flooding of and continuing trespass on the Durpos’ property.









The Durpos deny each and every allegation in the Counterclaim not specifically

admitted previously herein and they specifically deny that Counter-Plaintiffs are entitled

to recover any of the relief prayed for or requested in the Counterclaim under any of its

counts.

AFFIRMATIVE DEFENSES

The Durpos assert the following additional affirmative defenses to the

Counterclaim:

First Affirmative Defense

1. The Counter-Plaintiff’s claims should be dismissed for failure to join an

indispensable party: the South Florida Water Management District. The South Florida

Water Management District (SFWMD) is tasked with responsibility for, among other

things, the management of surface waters in Lee County, Florida. Indeed, all waters in

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the State of Florida are subject to regulation under Chapter 373 of the Florida Statutes

unless specifically exempted by general or special law. The SFWMD has the authority

to require permits and to impose such reasonable conditions as are necessary to

assure that the construction, alteration, operation and maintenance of any stormwater

management system will comply with the requirements of Chapter 373 and will not be

harmful to the water resources of the district.

2. Counter-Plaintiffs claim that the Golf Course Property1 and the their

properties are to be served by a unified water management system developed and

operated in accordance with permits issued by the SFWMD and that they retain certain

rights to alter the flow of the surface waters through the system and onto the Golf

Course Property. The Counter-Plaintiff further seek an order declaring their rights and

obligations as to the operation of the unified surface water management system.

3. Based on the facts, as alleged by the Counter-Plaintiffs, and the legal

authority granted the SFWMD by statute, the SFWMD is an indispensable party to this

action. The SFWMD has a material interest in the subject matter of this suit and would

be directly affected by an adjudication of this controversy. The Court cannot completely

adjudicate this matter without affecting the interests of the SFWMD. The order and relief

requested by Counter-Plaintiffs would directly affect the SFWMD’s interest as the issuer

of the permit that governs how the unified surface water management system operates

and as the entity charged with responsibility by the Florida Legislature with the

management of surface waters in Lee County. Because the Plaintiffs have failed to join

SFWMD as a party, the case should be dismissed.

1 Capitalized terms shall have the same meaning herein as defined in the Counterclaim.

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Second Affirmative Defense

4. Counter-Plaintiffs fail to state a cause of action for each of their claims

because Counter-Plaintiffs fail to allege facts, and will be unable to prove, each element

of their claim or basis for declaratory decree, including the counts claiming: (1) the

reasonable use doctrine establishes or supports the rights Counter-Plaintiffs claim; (2)

the existence of an irrevocable license in Counter-Plaintiffs favor against the Durpos; (3)

the existence of an express easement in Counter-Plaintiffs favor against, and upon the

lands of, the Durpos; (4) the existence of a common-law easement by necessity on and

in the Durpos’ property in favor of the Counter-Plaintiffs; (5) the existence of an implied

easement on and in the Durpos’ property in favor Counter-Plaintiffs; and (6) existence of

a mutual drain. Thus, Counter-Plaintiffs have no enforceable right to use the Durpos’

property for any purpose.

Third Affirmative Defense

5. Counter-Plaintiffs’ claims relying on the Decree or the Cost Share

Agreement are barred by the doctrine of equitable estoppel. SFWMD has repeatedly

stated to the Counter-Plaintiffs and their agents, that these documents do not satisfy the

requirements of the SFWMD Permit for the operation of the surface and stormwater

drainage system. Thus, Counter-Plaintiffs are estopped from asserting that the Decree

or the Cost Share agreement are sufficient for compliance with the requirements and

obligations imposed by the SFWMD Permit for the permissible use and operation of this

system.

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Fourth Affirmative Defense

6. Counter-Plaintiffs’ claims for interest in or rights over the Durpos’ property

or claims relying on the SFWMD Permit are barred by the terms of said permit, which

expressly deny the creation of any property right or privilege by its terms.

Fifth Affirmative Defense

7. Some or all of the Counter-Plaintiffs’ claims are barred by the doctrine of

laches. §95.11(6), Fla. Stat. The Counter-Plaintiffs stood by and silently acquiesced to

the continued use and operation of the system without any compensation to the Durpos

for the cost of operating said system, despite their knowledge of the existence of the

Cost Share Agreement and other bases for the rights they now claim under. The

Durpos lacked knowledge of the System and of the Defendant Associations’ dumping of

their surface waters onto the Golf Course Property at the time of purchasing the

property or in the years following that purchase, and did not know Counter-Plaintiffs

would be asserting property rights and interests over the Golf Course Property. The

Durpos will suffer injury and prejudice if the Counter-Plaintiffs prevail on these claims.

Thus, equity cannot allow the Counter-Plaintiffs to benefit from their prolonged delay in

bringing these claims.

Sixth Affirmative Defense

8. Some or all of the Counter-Plaintiffs’ claims are barred by the doctrine of

balancing of relative conveniences of the parties. Equity will not require the performance

of an act where the harm to the person coerced is wholly disproportionate to the benefit

of the party, or when greater injury and inconvenience will result to the defendant from

an injunction than will be caused to the plaintiff by its refusal. The injury to the Durpos

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by the Counter-Plaintiffs’ continued unauthorized use of the Golf Course Property

without adequate compensation is great, resulting in repeated destruction of the

property by flooding after heavy rains. However, the harm to Counter-Plaintiffs by

refusal of their claims is minimal, and avoidable if the Counter-Plaintiffs agree to

compensate the Durpos a reasonable amount for the use of their property and the

operation of the System.

Seventh Affirmative Defense

9. As an additional defense, the Durpos further state: following the resolution

of the arbitration with Stardial, the execution of the Cost Share Agreement, and in the

first seven years following the Durpos acquisition of the Golf Course Property, Counter-

Plaintiffs never recorded any easement or license to the property, never made any claim

to rights or privileges with respect to the Golf Course Property, and failed to provide any

indication to the Durpos of the existence of the unified surface water system or the

rights and obligations of the parties with regard to same. This inaction by Counter-

Plaintiffs misled and concealed from the Durpos the existence of a unified stormwater

drainage system, the rights of the Durpos under said system, and the nature and extent

of Counter-Plaintiffs’ obligations. Thus, the Counter-Plaintiffs have ratified, waived

claims against, acquiesced in, and accepted the Durpos right to refuse further drainage

of the surface and stormwaters under the current system and are barred from

contending they have any claim to or interest in the Durpos property.

Eighth Affirmative Defense

10. Some or all of the Counter-Plaintiffs’ claims are barred their inequitable

conduct and the doctrine of unclean hands, for among other reasons, the actions and

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omissions described in paragraph 9, above, and by the Counter-Plaintiffs conduct in

raising claims pursuant to the Cost Share Agreement and the SFWMD Permit, after

having violated the terms and conditions therein. Counter-Plaintiffs, for seven years,

made no payment or efforts to pay for its share of the cost of operating the surface

water drainage system and refused to offer and pay a reasonable amount for the

services and use of the Durpos’ property. Counter-Plaintiffs also failed to comply with

the requirements set out by the SFWMD for compliance with their portion of the

SFWMD Permit. Finally, Counter-Plaintiffs knowingly and intentionally failed to record

the Cost Share Agreement, as required by paragraph 11 therein, in order to mislead

future owners of the Golf Course Property such as the Durpos and conceal their

purported obligations under the agreement. Equity cannot permit or assist Counter-

Plaintiffs in benefiting in the face of their own wrongful conduct.

Ninth Affirmative Defense

11. Some or all of Counter-Plaintiffs’ claims are barred by the terms of the

Cost Share Agreement, which required (in paragraph 11 therein) the recording of the

document in order for the rights and obligations described therein to run with title to the

Golf Course land. The Cost Share Agreement was never recorded. Thus, the provision

therein imposing rights and obligations that run with the land and upon the parties

successor or assigns never took effect.

Tenth Affirmative Defense

12. It was not the intent of the Counter-Plaintiffs and the Durpos’

predecessors in title for the licenses, easements, drainage rights, and property interests

and rights claimed in the Counterclaim to be applied or enforced in the manner in which

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Counter-Plaintiffs seek. Thus, some or all of the Counter-Plaintiffs claims are barred as

being contrary to the intent of the parties.

Eleventh Affirmative Defense

13. Although the Durpos deny they are bound by the Cost Share Agreement

and Decree, in the event the Court determines otherwise, some or all of Counter-

Plaintiffs claims are barred by the doctrine of collateral estoppel and res judicata in so

far as Counter-Plaintiffs are claiming rights under the Decree as the intended third party

beneficiary, and they seek to impose obligations on the Durpos as the successors to

other parties to the Decree. Thus, Counter-Plaintiffs and the Durpos are in privity with

the parties to the arbitration, and Counter-Plaintiffs are barred from re-litigating the

claims and issues already decided in the arbitration.

Twelfth Affirmative Defense

14. Counter-Plaintiffs waived the claims raised in the Counterclaim. Counter-

Plaintiffs intentionally relinquished their known rights related to the Golf Course Property

by failing to record in the public records the Cost Share Agreement and other

documents creating the land use rights and interests they claim, and by other conduct

described in the paragraphs above.

Thirteenth Affirmative Defense

15. Counter-Plaintiffs, in knowingly utilizing and accepting the benefits

provided by the Durpos and refusing to pay for such services or compensate the Durpos

for the damages caused, have been unjustly enriched and are entitled to no relief as a

matter of equity and good conscious.

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Fourteenth Affirmative Defense

16. The conduct of Counter-Plaintiffs described in these Affirmative Defenses

and Counterclaim, and their attempt to use the SFWMD Permit as a basis for flooding

and using the Durpos’ property without just compensation, if allowed, would constitute

an unconstitutional taking, and an impermissible and inordinate burdening of the

Durpos’ property, in violation of Federal and Florida constitutional protections and

statutes. Counter-Plaintiffs, under color of law, and in conspiracy with governmental

actors have caused these deprivations of the Durpos’ property rights. Therefore, their

claims are barred.

Fifteenth Affirmative Defense

17. Counter-Plaintiffs’ claims are barred by the applicable statute of frauds in

that Counter-Plaintiffs seek an interest in the Durpos’ real property without any valid

written instrument signed by the owner of said real property.

Sixteenth Affirmative Defense

18. The allegations in the Counter-Plaintiffs Counterclaim are repugnant to,

negated and contradicted by the documents attached to the Counterclaim, which render

the Counterclaim a nullity and subject to dismissal.

Seventeenth Affirmative Defense

19. Counter-Plaintiffs’ claims are barred by their own negligence in failing to

record in the Public Records of Lee County information reflecting their claimed rights

involving the Golf Course Property, thereby causing innocent purchasers to acquire

such property on the basis that the property was unencumbered by the easements,

licenses and other rights the Counter-Plaintiffs now claim. Any losses or injury Counter-

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Plaintiffs claim they are suffering or will suffer are not the fault of the Durpos, but rather,

are the result of Counter-Plaintiffs’ and their agents’ and predecessors’ own negligence,

misleading conduct, and/or lack of due diligence in matters outside of the Durpos’

control.

Eighteenth Affirmative Defense

20. Counter-Plaintiffs’ refusals to pay or contribute to the costs for use and

services provided by the Golf Course Property and the Durpos bars all claims by

Counter-Plaintiffs.

Nineteenth Affirmative Defense

21. Counter-Plaintiffs’ and their predecessors’ failure to obtain and perfect the

required land use rights required for their water dumping activities bars their claims.

Twentieth Affirmative Defense

22. Counter-Plaintiffs’ claims are barred by their lack of good faith and fair

dealing in their silence, failure to disclose material facts and information, and attempts

to take advantage of the Durpos’ ignorance of their activities.

Twenty-First Affirmative Defense

23. Counter-Plaintiffs’ claims are barred because Counter-Plaintiffs have

provided no consideration to the Durpos for any right or interest authorizing use of the

Durpos’ property and for the services provided by the Durpos for the operation of the

System.

Twenty-Second Affirmative Defense

24. Counter-Plaintiffs’ claims are barred in whole or in part by their own failure

to comply with the SFWMD’s requirements for their permits and by refusing to enter into

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any agreement with the Durpos to pay for the reasonable value of the benefits and land

use rights and services they seek to obtain.

Twenty-Third Affirmative Defense

25. Where, as here, it can be determined that the Durpos are innocent

purchasers of property without notice of any alleged burdens or land use rights by

adjacent owners, and it is those land owners who made the wrong complained of

possible, by, among other things, failing to obtain and record documents creating such

land use rights and put them in the public records, equity requires that Counter-Plaintiffs

bear the burden of such loss and the relief they seek should be denied.

Twenty-Fourth Affirmative Defense

26. The Durpos assert and incorporate by reference, as if set forth fully herein,

all allegations and claims contained in their Amended Complaint against Counter-

Plaintiffs as affirmative defenses to the counterclaims.

RESERVATION OF RIGHT TO AMEND AFFIRMATIVE DEFENSES

The Durpos reserve the right to amend their Answer and Affirmative Defenses as

discovery is provided during the course of these proceedings.

DEMAND FOR JURY TRIAL

The Durpos demand a trial by jury of all matters so triable as a matter of right.

MOTION TO STRIKE CLAIM FOR ATTORNEYS’ FEES

The Durpos, by and through undersigned counsel, further file this Motion to

Strike Counter-Plaintiffs’ Claim for Attorney’s Fee in Count III of the Counterclaim

because this relief is unauthorized under these circumstances, and state as follows:

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1. Counter-Plaintiffs assert claims for recovery of “attorney fees” against the

Durpos in Count III of the Counterclaim. (See Counterclaim, ¶ 103 and prayer for relief,

following same.)

2. While the allegations state the attorney fees being claimed are “pursuant

to paragraph 9 of the Cost Share Agreement,” there is no allegation that the Durpos are

parties to that agreement. Indeed, there could be no such allegation because the Cost

Share Agreement, attached as Exhibit Y to the Counterclaim and incorporated herein,

clearly and unequivocally demonstrates that the only parties to the Cost Share

Agreement are Estero Bay Improvement Association, Inc. and Bay Beach Golf Club,

Inc.

3. The well-established rule in Florida is that “a contract cannot bind one who

is not a party thereto or has not in some fashion agreed to accept its terms. To create a

valid contract there must be reciprocal assent to a certain and definite proposition.

CH2M Hill Se., Inc. v. Pinellas County, 598 So. 2d 85 (Fla. 2d DCA 1992) (citing In re

Estate of Donner, 364 So.2d 742 (Fla. 3d DCA 1978). See also Jenkins v. City Ice &

Fuel Co., 160 So. 215, 217 (Fla. 1935) (“A third party is not liable as a rule upon a

contract, express or implied, unless he was one of the immediate parties to the

agreement or has become a party to it by subsequent agreement with the original

parties.”).

4. When exhibits facially negate the claim set out by the complaint, the

documents attached control. Fladell v. Palm Beach County Canvassing Bd., 772 So. 2d

1240, 1242 (Fla. 2000). “When there is an inconsistency between the general

allegations of material fact in the complaint and the specific facts revealed by the

- 40 -



exhibit, and they have the effect of neutralizing each other, the pleading is rendered

objectionable” and subject to dismissal. Greenwald v. Triple D Properties, Inc., 424 So.

2d 185, 187 (Fla. 4th DCA 1983); Harry Pepper & Associates, Inc. v. Lassiter, 1247 So.

2d 736 (Fla. 3d DCA 1971); Hotels of Key Largo v. RHI Hotels, Inc., 694 So. 2d 74 (Fla.

3d DCA 1999).

5. While Counter-Plaintiffs assert entitlement to recovery of attorney’s fees

under the provisions of the Cost Share Agreement, the attached document makes clear

that the parties executing the agreement, and therefore holding the claims and bound

by its terms, are Estero Bay Improvement Association, Inc. and Bay Beach Golf Club,

Inc. In short, the Durpos, are not parties to the “agreement” that purportedly provides for

recovery of “attorney fees.”

6. Florida follows the so-called “American Rule” as to whether attorneys’ fees

can be recovered in a case.

7. Under that Rule, attorneys’ fees are only recoverable when provided by

contract, statute, or in circumstances in which the case results in the creation of a (trust)

fund from which fees can be recovered. Those circumstances are not involved in this

case. See, e.g., Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240

(1975); Dade County v. Pena, 664 So.2d 959 (Fla. 1995); Standard Guaranty Ins. Co. v.

Quanstrom, 555 So.2d 828 (Fla. 1990); Martin v. Daskow, 339 So.2d 266 (Fla. 3d DCA

1976).

8. Counter-Plaintiffs have not attached any written contract to which the

Durpos are a party that provides for recovery of attorneys’ fees nor cited any statutory

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basis for their recovery, and are not seeking to create any common fund for others to

share. Therefore, there is no basis for recovery of attorneys’ fees.

WHEREFORE, the Durpos respectfully request the entry of an order striking from

the Counterclaim any allegation, claim or prayer for relief seeking the imposition of

attorney’s fees.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was filed with the

Florida Court’s E-Filing Portal on this 24th day of January 2014, and pursuant to the

Florida Supreme Court’s Administrative Order No. AOSC13-49, a copy of foregoing will

be served via e-mail upon all counsel listed on the attached Service List, in accordance

with the requirements within Rule 2.516, Florida Rules of Judicial Administration.

Respectfully submitted,

Attorneys for Plaintiffs,

Timothy J. Murty, Esq.

MURTY & MONK, P.A. 1633 Periwinkle Way, Suite A Sanibel Island, FL 33957-4404 Tel.: 239-472-1000, Fax: 239-472-4449 E-mail: [email protected] AND BEASLEY & DEMOS, LLC

2950 S.W. 27th Avenue, Suite 100

Miami, FL 33133

Tel.: 305-669-3131, Fax: 786-360-5924

/s/ Joseph W. Beasley By: ____________________________

JOSEPH W. BEASLEY

mailto:[email protected]

- 42 -



Florida Bar No. 172074

[email protected]

[email protected]

JENNIFER PEREZ ALONSO

Florida Bar No. 0051389

[email protected]




- 43 -



DURPO v. BELLA LAGO CONDOMINIUM AT BAY BEACH CONDOMINIUM

ASSOCIATION, INC., ET AL. – In the Circuit Court in and for Lee County, FL

Case No. 13-CA-001057

SERVICE LIST

Attorneys for Plaintiffs Clark L. Durpo and Clark L. Durpo, Jr. Joseph W. Beasley, Esq. BEASLEY & DEMOS, LLC 2950 S.W. 27th Avenue, Suite 100 Miami, FL 33133 Tel.: 305-669-3131, Fax: 786-360-5924 [email protected] [email protected] [email protected] [email protected] Attorneys for Plaintiffs Clark L. Durpo and Clark L. Durpo, Jr. Timothy J. Murty, Esq. MURTY & MONK, P.A. 1633 Periwinkle Way, Suite A Sanibel Island, FL 33957-4404 Tel.: 239-472-1000, Fax: 239-472-4449 E-mail: [email protected] Attorneys for The Palms of Bay Beach Condominium Association, Inc., Steven G. Koeppel, Esq. YESLOW & KOEPPEL, P.A. P.O. Box 9226 Fort Myers, FL 33902 Tel: 239-337-4343, Fax: 239-337-5762 [email protected], [email protected] Attorneys for Defendants Waterside IV at Bay Beach Condominium Association, Inc. Vanessa R. Ross, Esq. GROELLE & SALMON, P.A. 101 Paramount Drive Sarasota, FL 34232 Tel: 941-225-6900, Fax: 941-225-6990 [email protected]

Attorney for Defendant Bella Lago Condominium at Bay Beach Condominium Association, Inc., Waterside III at Bay Beach Condominium Association, Inc Jennifer A. Nichols, Esq. & Ashley D. Lupo,

Esq. ROETZEL & ANDRESS, L.P.A. 850 Park Shore Drive, 3rd Floor Naples, FL 34103 Tel.: 239-649-6200, Fax: 239-261-3659 [email protected],

[email protected] [email protected], [email protected]

Attorney for Defendants Bella Lago Condominium at Bay Beach Condominium Association, Inc., Casa Marina Association, Inc., Casa Marina II Condominium Association, Inc., Valencia Villas at Bay Beach Association, Inc., Waterside I at Bay Beach Condominium Association, Inc., Waterside II at Bay Beach Condominium Association, Inc., Waterside III at Bay Beach Condominium Association, Inc., Waterside IV at Bay Beach Condominium Association, Inc., Waterside V at Bay Beach Condominium Association, Inc., and Waterside Manatee Bay Holdings, LLC. David Potter, Esq. FOWLER WHITE BOGGS P.A. 2235 First Street Fort Myers, Florida 33901 Direct: 239-985-4809, Fax: 239-425-6390 [email protected] [email protected] and















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Attorney Defendants Royal Pelican Association, Inc., Waterside I at Bay Beach Condominium Association, Inc., Waterside II at Bay Beach Condominium Association, Inc., Valencia Villas at Bay Beach Association, Inc., Manatee Bay at Bay Beach Condominium Association, Inc., Sunset Gulf Condominium Association, Inc., Casa Marina III Condominium Association, Inc., David Chaiet, Esq. & Michele A. Crosa, Esq. ESINGER, BROWN, LEWIS, FRANKEL & CHAIET, P.A. 4000 Hollywood Boulevard, Suite 265 South Hollywood, FL 33021 Tel.: 954-894-800, Fax: 954-894-8015 [email protected], [email protected], [email protected]

Michael Ciccarone, Esq. Corporate Quarters, Suite 213 13180 N. Cleveland Avenue North Fort Myers, FL 33903 Tel. 239-997-2200, Fax: 239-997-2200 [email protected]

Attorneys Defendants Royal Pelican Association, Inc.,The Palms of Bay Beach Condominium Association, Inc., Hibiscus Pointe Condominium Association, Inc., Manatee Bay at Bay Beach Condominium Association, Inc., Harbour Pointe Condominium Association, Inc. Ron M. Campbell, Esq. & Lindsay Lee, Esq. COLE, SCOTT & KISSANE, P.A. 27300 Riverview Center Blvd., Suite 200 Bonita Springs, FL 34134 Tel: 239-690-7900, Fax: 239-738-7778 [email protected] [email protected] [email protected] Attorney for Defendant South Florida Water Management District Jeffrey A. Collier, Esq. Douglas H. MacLaughlin, Esq. South Florida Water Management District 3301 Gun Club Road, MSC 1410 West Palm Beach, FL 33406 Tel: 561-682-6778, Fax: 561-682-6276 [email protected], [email protected] [email protected]











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