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Filing # 49388625 E-Filed 11/29/2016 02:30:39 PM
IN THE CIRCUIT COURT OF THE
TWENTIETH JUDICIAL CIRCUIT, IN
AND FOR CHARLOTTE COUNTY,
FLORIDA
CASE NO. 15-000259CA
MAXCY DEVELOPMENT GROUP
HOLDINGS — WATERFORD ESTATES,
INC.,
Plaintiff,
Vv.
CHARLOTTE COUNTY and
SHERIFF BILL PRUMMELL,
Defendants.
/
PLAINTIFF’S RESPONSE TO DEFENDANT’S
MOTION FOR JUDGMENT ON THE PLEADINGS
The Plaintiff, Maxcy Development Group Holdings — Waterford Estates, Inc. (“Maxcy”),
by and through its undersigned counsel, pursuant to Rule 1.140(c), Florida Rules of Civil
Procedure, hereby files its response to the County’s motion for judgment on the pleadings filed
by the Defendant, Charlotte County (the “County”) and in support thereof states as follows:
1 The County has filed a motion captioned Charlotte County’s Motion for Judgment
on the Pleadings or, in the alternative, Motion for Partial Summary Judgment. Because the
standards for a judgment on the pleadings and a motion for summary judgment are so different,
addressing the primary relief sought and the alternate relief can be confusing. Therefore, this
reply will be directed to the judgment on the pleadings. Accordingly there are no references to
affidavits, answer to interrogatories, admissions, depositions or other materials. The
consideration of whether such a judgment is appropriate rises and falls only on the allegations of
the pleadings, all of which must be taken as true in favor of the non-movant.
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2 There are three issues before the Court on the motion for judgment on the
pleadings: (1) the timeliness of the notice and can statutory notices pursuant to §768.28(6)(a),
Florida Statutes be served after institution of the action as long as they are still within the 3 year
timeframe; (2) the content of the notice and did the notices contain sufficient description of the
claim; and (3) did providing the Plaintiffs federal tax id and allegations of previous judgments
in the Complaint satisfy the requirements of §768(6)(c and d).
3 The pleadings have closed and it is now an appropriate time for the Court to
entertain judgments on the pleadings.
The Requirement to Provide Tax ID and Judgments
4 Facts as Plead:' The Plaintiff provided its federal tax id and alleged that there
were no prior adjudicated claims owed to either of the Defendants in the Complaint at
paragraphs 2 and 3, and in each of the subsequent amendments to the pleadings, including the
operative pleading, the Third Amended Complaint, to wit:
a. “Maxcy’s federal identification number is [number stated]”.
b. “Maxcy has no prior adjudicated claims owed to either of the Defendants.”
5 Section 768.28(6)(c) provides that “[t]he claimant shall provide to the agency the
claimant’s ... federal identification number.” The claimant shall also state amounts of previous
adjudicated judgments or “[i]f there exists no prior adjudicated unpaid claim in excess of $200,
the claimant shall so state.”
6. The purpose of the statute is to ensure that the state is aware of all previous claims
owed to the state by the plaintiff so that the state may properly allege and assert a set-off for the
amount of the previous claims.
' The operative pleading in this matter is the Third Amended Complaint which was
deemed filed as of May 13, 2016, and is attached hereto for reference as Exhibit A.
2
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7
The statute provides the timing and purpose for the disclosures. “For purposes of
this section, complete, accurate, and timely compliance with the requirements of paragraph (c)
shall occur prior to settlement payment, close of discovery or commencement of trial, whichever
is sooner; provided the ability to plead setoff is not precluded by the delay.” §768.28(6)(d), Fla.
Stat. (2016). (emphasis added.) The statute creates deadlines to ensure that the state is not
prejudiced in asserting a setoff as an affirmative defense and explicitly state those deadlines.
8 The statute also provides the relief available to the state if the plaintiff fails to
timely provide the disclosure: “Unless the appropriate agency had actual notice of the
information required to be disclosed by paragraph (c) in time to assert a setoff, an unexcused
failure to disclose shall, upon hearing and order of the court, cause the claimant to be liable for
the double the original undisclosed judgment ...” §768.28(6)(d), Fla. Stat. (2016). The relief
afforded by the statute is a penalty in the form of doubling the setoff, it is not dismissal.
9 The requirement of the statute is to disclose the potential amount of set-off so that
it can be pled by the state, and the failure to make such a disclosure can result in the state being
able to double the amount of the set-off. The failure to disclose does not affect the Plaintiff's
ability to bring suit or recover a judgment. The only relief available is a set-off penalty.
10. The facts as pled prove that Maxcy has previously complied with the requirement
of the statute by providing the tax id number and the existence of any claims prior to the sooner
of settlement payment (which has not occurred), close of discovery (which has not occurred) or
commencement of trial (which has also not occurred). Based upon the pleadings, the Court
should rule as a matter of law that Maxcy complied with the requirements of §768.28(6)(c),
Florida Statutes.
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WHEREFORE Maxcy Development Group Holdings — Waterford Estates, Inc.
respectfully requests that this Court deny so much of the Defendant’s motion for judgment on the
pleadings that is based upon failure to provide federal tax id number and notice of adjudicated
claims and rule that Maxcy has timely complied with this condition precedent.
The Claim That There is a Requirement to Provide Notice Pre-Suit
11. Facts as Plead:
a, The Plaintiff had neither actual nor constructive knowledge that
bullets from the gun range were entering its property nor actual or constructive
knowledge that actions by the Defendants constituted negligence or trespass
before November 13, 2013. See, Third Amended Complaint, paras. 28 and 29.
b. The Plaintiff provided written notice to the County and the Sheriff
by letters dated April 15, 2014 and September 26, 2014. See, Third Amended
Complaint, paras. 39 and 49 and Exhibits C and D to the Third Amended
Complaint, respectively.
c. The Complaint was filed on February 4, 2015.
d. The Plaintiff provided notice to the Department of Financial
Services on April 3, 2015. See, Third Amended Complaint, para. 54 and Exhibit
E to the Third Amended Complaint.
€. The Amended Complaint was filed on April 14, 2015.
f. The Plaintiff provided additional notice to the Department of
Financial Services and the Defendants on July 22, 2015. See, Third Amended
Complaint, para. 64 and Exhibit F to the Third Amended Complaint.
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g The Third Amended Complaint was deemed filed on May 13,
2016.
12. Section 768.28(6)(a), Florida Statutes requires a claimant to present its claim to
the state or one of agencies and to the Department of Insurance within 3 years of the claim
accruing. The statute also requires that the plaintiff plead compliance with statutory conditions
precedent. However, a claimant can provide the notice after a suit is instituted as long as the
statutory notice is provided within the 3 year time limit and the suit is brought within the
applicable statute of limitations.
13. The County represents to the Court that “no Court in this State has allowed notice
served in the midst of litigation to suffice as presuit notice.” See, County Motion, Argument,
para. 5. That is not the state of the law.
14, Other than their bald allegation, the County has not cited any case supporting the
proposition that failing to serve the notice prior to filing the initial complaint is dispositive. In
fact, the last court to adopt the position the County proposes was overturned on appeal. In Askew
v. County of Volusia, 450 So, 2d 233 (Fla. 5th DCA 1984), the trial court was reversed when it
held that statutory notices filed after the original complaint were ineffective. Jd. at 235.
15. In Askew the plaintiff filed his first complaint shortly after being injured.
Approximately 2 years later, the plaintiff added the County to the suit by an amended complaint.
After the County was added the Plaintiff served the statutory notice to the County and the
Department. The Plaintiff next served a second amended complaint alleging service of the
statutory notices and the County moved to dismiss because the notices were served after the suit
was instituted. The trial courted noted the timing of the notices as being after the first amended
complaint and before the second amended complaint but still granted the motion to dismiss. The
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trial court ruled: “Plaintiffs only attempts at giving notice were subsequent to the filing of his
first amended complaint ... and were ineffective under the statute.” Id. at 234.
16. In reversing the trial the court, the 5th DCA noted that “[t]he trial court apparently
felt that since the notice was given after the filing of the original compliant, it was forever
ineffective.” Jd. at 235. The appeals court held that the trial court should have either allowed an
amendment or allowed a newly-filed complaint to stand. /d.
17. The Askew case makes the key point that failure to serve the statutory notices
prior to filing the initial complaint does not forever bar the lawsuit. Contrary to the law, that is
exactly what the County is claiming. They are not claiming they didn’t receive the initial
notices; they are not claiming that they didn’t have opportunity and did in fact investigate. The
claim by the County is a classic “gotcha”. However, in this case the law does not support the
sanction of complete dismissal of the Plaintiff's suit. The case law clearly supports the ability of
the Plaintiff to provide the statutory notices after the initial filing and prior to the operative
pleading alleging compliance with the statutory condition precedent.
18. It has been pled, and is also undisputed, that the Plaintiff served written notices
upon the Defendants on April 15, 2014 and September 26, 2014, on the Department on April 3,
2015, and again on the Department and the Defendants on July 22, 2015; and that all notices
were served within the 3 year time limit.
19, The statute requires the notice be served within 3 years of the claim accruing and
courts have determined that such notice can be served after the lawsuit is filed as long as it is still
within the 3 year time period. In this case, the 3 year period began running on November 13,
2013, and all of notices were served on or prior to July 22, 2015, approximately 20 months later.
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WHEREFORE Maxcy Development Group Holdings — Waterford Estates, Inc. respectfully
requests that this Court deny so much of the Defendant’s motion that is based upon failure to
timely serve the notice required by §768.28(6)(b), Florida Statutes.
The Content of the Notice
20. Facts as Plead:
a. The Plaintiff had neither actual nor constructive knowledge that
bullets from the gun range were entering its property nor actual or constructive
knowledge that actions by the Defendants constituted negligence or trespass
before November 13, 2013. See, Third Amended Complaint, paras. 28 and 29.
b. The Plaintiff provided notice of its claim to the County and the
Sheriff by letters dated April 15, 2014 and September 26, 2014. See, Third
Amended Complaint, paras. 39 and 49 and Exhibits C and D to the Third
Amended Complaint, respectively.
Cc. The Plaintiff provided notice of its claim to the Department of
Financial Services on April 3, 2015. See, Third Amended Complaint, para. 54
and Exhibit E to the Third Amended Complaint.
d The Plaintiff also provided notice of its claim to the County,
Sheriff and Department by letter dated July 22, 2015. See, Third Amended
Complaint, para. 64 and Exhibit F to the Third Amended Complaint.
€. The Third Amended Complaint is the operative pleading and was
deemed filed as of May 13, 2016.
f, Each of these notices were served and received within three years
of the claim accruing on November 13, 2013.
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g Each of these notice were served and received prior to the filing of
the Third Amended Complaint on May 14, 2016.
21. The County’s complaint about the sufficiency of the Plaintiff's April 15, 2014,
September 26, 2014 and July 22, 2015 notice letters are that they do not state that the Plaintiff is
suing for negligent construction, negligent maintenance and negligent operation of the Gun
Range, do not make a demand for compensation and were never served on the Department. The
County also appears to complain that different notices were served on the Department than the
County and the Sheriff.
22. Section 768.28(6)(a), Florida Statutes, states that “[a]n action may not be
instituted on a claim against the state or one of its agencies or subdivisions unless the claimant
presents the claim in writing the appropriate agency.” The statute also requires that notice be
provided to the Department of Financial Services (the “Department”, Id. The statute is
otherwise silent as to the necessary content of the notice.
23. The case cited by the County in support of its motion, Smart v. Monge 667 So. 2d
957 (Fla. 2d DCA 1996), provides an example of a notice that was not sufficient to alert the
defendants that they needed to investigate the allegations. In Smart, the Plaintiff sued the Sheriff
and the County Commissioners. It appears that three years had passed since the claim had
accrued and the Plaintiff's attorney was scrambling to find a previously sent letter that could post
hoc satisfy the notice requirements. All the Plaintiff could find was a previous request for
documents which made no mention of any claim. The Court found that letter insufficient. The
court noted that it had previously held that “any manner of written notice that satisfactorily
describes or identifies the occurrence underlying the claim should suffice.” /d. at 958. However,
the court held that “[a]lthough the statute lacks specificity as to what is required to present a
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notice of claim, we conclude, at a minimum, the written notification must contain language
notifying the agency of a claim; that is a demand for compensation.” Jd. at 959. The Smart letter
did not meet this requirement.
24. The Smart case provides the full text of the letter sent by the plaintiff to the
Sheriff's attorney. As the Smart court notes, it is merely a request for documents and provides
no notice that the claimant is seeking any type of relief, other than production of documents.
June 8, 1993
Tom Scanlan, Esquire
Legal Advisor Sarasota County Sheriff's Office
P.O. Box 4115 Sarasota, FL 34230
Re: Kenneth Smart Date of Death: 4/5/91
Dear Mr. Scanlan:
It was a pleasure speaking with you in the above referenced matter. Please be
advised that I have been retained by Mr. Smart's mother, Electa Smart. On her
behalf I would like to make a formal request for all available documents
concerning Mr. Smart including any investigation into his death.
Should you require anything further from me in order to provide this information
please advise. Thank you for your assistance and cooperation.
Smart at 958-9,
25. The Smart letter which the Plaintiff tried to shoehorn into being an adequate
statutory notice, was nothing more than a request for documents and provides no notice that Mrs.
Smart was stating any type of claim against the Sherriff.
26. The County appears to imply that the Smart case requires that a claim for
compensation must liquidate the amount of damages instead of merely claiming the existence of
damages. Plaintiff acknowledges that the claim does not liquidate the amount of the damages
but states that is not a requirement of the statute nor of the Smart case. Further the Smart case
does not address the situation where the claim is for injunctive relief, as is the instant case where
the Plaintiff demands that the operation of the gun range cease.
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27. The Smart case tells us what is not a notice letter — a simple request for
documents will not suffice — but we have to turn to other cases to learn what is required in a
proper notice letter.
28. In Whitney v. Marion County Hospital District 416 So. 2d 500 (Fla. 5" DCA
1982) the appeals court reversed the finding below that was based upon a failure to provide a
notice with the proper content. The Court held: “Since section 768.28(6) does not specify the
form or manner of submitting the claim, except that it be in writing, it follows that any manner of
submitting a written notice of the claim to the agency involved that sufficiently describes or
identifies the occurrence so that the agency may investigate it, satisfies the statute.” Jd at 502.
(emphasis added.) The court identified that the key attribute of the notice is the identification of
the occurrence; the thing that happened; the facts describing or identifying what happened.
There is no mention nor requirement to state a specific legal theory which may give rise to
recovery based upon the occurrence. There is no requirement to state a specific cause of action.
And there is no requirement to state what the damages may be. Whitney identifies that the
purpose of notice is to provide information to the agency so that the agency has the ability to
investigate it.
29. The claim presented by Plaintiff to the County and Sheriff most certainly seeks
relief and redress from the harm caused by their actions. It describes in detail the occurrence. It
provided sufficient information so that the Defendants can investigate the claim. The claim
letters specifically request that the Sheriff cease and desist from operating the gun range and
move the gun range to another location. Although the amount of damages were then unknown, it
is was no secret that the Plaintiff stated it has been damaged by the Defendants, sought to be
made whole, and demanded that the Defendants cease operation of the gun range.
10
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Examination of the Notice Letters
30. The first notice, the April 15, 2014, letter attached as Exhibit C to the Third
Amended Complaint, is captioned “Specific Demands of Maxcy” and identifies the nature of the
claim and demands that the Defendants take certain actions to address the claim.
The fact that the stray bullets have come from the County’s operation of the
gun range would seem indisputable.
The fact that bullets are “straying” into adjacent property would seem to be a
clear case of trespass and nuisance.
The County and the Sheriff are on notice of the fact their gun range has been
operating in an unsafe manner and they have failed to recognize the problem or
correct it.
[T]he Sheriff should immediately take these reasonable and prudent actions;
cease all operation on the Range; and engage an ordinance expert to fully
investigate history and magnitude of the stray bullets that have landed on
[Plaintiffs] Property.
31. The second Notice, September 26, 2014, letter attached as Exhibit D to the Third
Amended Complaint, also provided notice to the Defendants of Maxcy’s claim and the relief
sought.
... subcontractor’s ... said they witnessed bullets hitting the property.
... over 150 bullets and bullet fragments [have been found]
[The further study] found hundreds of stray bullets and bullet fragments...
The tests found high caliber bullets and rounds from automatic weapons
commonly used for law enforcement or SWAT team use.
[Personnel have attested to bullets hitting the tree line separating the
community from the gun range while they were on site gathering data.
We hereby request that you re-consider our attorney’s April 15, 2014 Demand
Letter...
32. The notice to the Department, April 3, 2015, letter attached as Exhibit E to the
Third Amended Complaint, provides adequate notice to the Department for them to investigate.”
Please consider this notice to the Department of Financial Services pursuant to
section 768.28(6), Florida Statutes. Maxcy Development Group Holdings —
? The witness for the Department, Kelly Hagenbeck, stated that the extent of their
investigation is to determine whether the Department is the insurer for the agency. In this case
they were not the insurer and the Department simply file the notice away without further action.
11
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Waterford Estates, Inc. (“Maxcy”) has claims against both Charlotte County and
the Sheriff of Charlotte County, Bill Prummell related to the operation of gun
range which is adjacent to property owned by Maxcy. The claim sounds in tort
for nuisance. It is a recent and ongoing nuisance as the gun range is still be[ing]
operated and bullet fragments are still entering Maxcy’s property. Macxy is
seeking both monetary damages as well as an injunction preventing future
damage to its property and the public property (the streets) in the development.
33, In April, 2015, the Department was put on notice of the state actors (the County
and Sheriff), their actions (operating a gun range), the location of the harm (adjacent property),
the time when the actions occurred (recent and ongoing), the nature of the harm being suffered
(bullet fragments entering property), and the relief being sought (monetary damages and
injunctive relief).
34. After the Defendants repeatedly raised the issue of the adequacy of the notice, the
Plaintiff put the Defendants and the Department on notice again with the July 22, 2015 letter, this
time with a subject line specifically referencing the statute: “Statutory Notice of Claim -
§768.28(6), Florida Statutes.” The July 22, 2015 letter is partially quoted below:
The Sheriff and County have permitted bullets from their range to dangerously enter
the private and public property of the immediately adjacent property owner. In doing so,
they damaged the adjacent property and put members of the public at risk for personal
injury. Maxcy first learned of the encroachment to their property in November 2013. The
Sheriff, however, has been aware of bullets leaving the range for some time. They
continued to operate the range and risk damage to property and injury to persons in spite
of notice going back as far as 2002 involving incidents where a woman was injured by a
stray bullet and a window of car was damaged by another stray bullet. The prior sheriff
actually investigated these prior matters and made statements to the press which appeared
to admit liability.
Maxcy has sued the Sheriff and the County in tort. Maxcy is seeking money damages,
the exact amount to be determined at trial, for all damages available under the law which
may include costs of remediation, loss of property value, costs of investigation, and other
money damages. Maxcy is also seeking injunctive relief prohibiting the Sheriff and the
County from continued operation of the range.
Enclosed please find the original Complaint filed February 4, 2015, the Amended
Complaint filed April 14, 2015 and all the attachments thereto. Please read the pleadings
and all the attachments carefully as Maxcy incorporates all of their allegations, herein.
12
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You can see from the Complaints and the attachments that Maxcy has provided notice in
the past, is claiming money damages, and is seeking injunctive relief.
35. The purpose of the notice required by § 768.28(6), Florida Statutes, is to provide
advance notice to state agencies that a claim may be made against them. It does not shorten the
statute of limitations, but provides an advance warning that a claim may be made. It prevents the
agency from being surprised if a suit is brought on the eve of the statute of limitations running.
It allows the agency to begin investigating the facts surrounding the potential claim and could
permit pre-suit evaluation and potentially settlement of the claim. The requirements for the
specific contents of the notice are not identified within the statute, only that notice must be
provided. The statute merely requires the “claimant present[] the claim in writing to the
appropriate agency. §768.28(6)(a), Fla. Stat.
36. The multiple and repeated notices provided to the Defendants and the Department
meet the requirements of the statute, and the cases interpreting the statutes, to provide adequate
notice that claim is being stated against them. The content of the letters was more than adequate
to provide the statutory notice.
WHEREFORE Maxcy Development Group Holdings — Waterford Estates, Inc. requests that
this Court deny the Defendant, Charlotte County’s motion for judgment on the pleadings.
13
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 29 day of November, 2016, I electronically filed the
foregoing with the Clerk of the Court by using the State of Florida ePortal system which will
serve an electronic copy to: Philip Fairman, Esq., Cody B. Vaughan-Birch, Esq., Office of the
Charlotte County Attorney, Philip. fairman@charlottecountyfl.gov, Cody, Vaughan-
Birch@charlottecountyfl.gov Laurie.Crouse@charlottecountyfl.gov and Bruce Jolly, Esq.,
Purdy, Jolly, Giuffreda & Barranco, P.A., bruce@purdylaw.com and susie@purdylaw.com.
s/Michael G. Murphy
Michael G. Murphy, Esquire
Florida Bar No: 139890
GREENBERG TRAURIG, P.A.
450 South Orange Avenue, Ste. 650
Orlando, FL 32802-4923
Telephone: (407) 999-2509
Facsimile: (407) 420-5909
Email: murphyme@gtlaw.con
14
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IN THE CIRCUIT COURT OF THE
TWENTIETH JUDICIAL CIRCUIT, IN
AND FOR CHARLOTTE COUNTY,
FLORIDA
CASE NO. 15-000259CA
MAXCY DEVELOPMENT GROUP
HOLDINGS — WATERFORD ESTATES,
INC.,
Plaintiff,
Vv.
CHARLOTTE COUNTY and
SHERIFF BILL PRUMMELL,
Defendants.
/
THIRD AMENDED COMPLAINT‘
The Plaintiff, Maxcy Development Group Holdings — Waterford Estates, Inc. (“Maxcy”),
files its Third Amended Complaint against Defendants, Charlotte County (the “County”) and
Sheriff Bill Prummell (the “Sheriff’) and in support of its causes of action would state as
follows:
JURISDICTIONAL ALLEGATIONS
1 Plaintiff, Maxcy, is a Florida corporation who at all times material hereto was
authorized to do business in the state of Florida.
2 Maxcy’s federal identification number is =.
_
Maxcy has no prior adjudicated claims owed to either of the Defendants.
Defendant, the County, is a state agency or subdivision of state government.
Defendant, the Sheriff, is a constitutional officer of the state.
* Dated May 13, 2016.
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Attachment 1
EXHIBIT A
6. This complaint states causes of action seeking damages that exceed $15,000
exclusive of attorney’s fees, costs and interest related to damage to property lying in Charlotte
County. It also seeks injunctive relief related to abating a continuing trespass to property lying
in Charlotte County.
7
This court has jurisdiction to hear this matter and venue properly lies in Charlotte
County.
8 All conditions precedent have occurred or otherwise been waived.
COMMON ALLEGATIONS
Background Facts
9 The property at issue in this complaint is within what is commonly known as
Waterford Estates (the “Development”), a subdivision plat which was approved by the County.
10. On or about April 18, 2006, the Charlotte County Board of County
Commissioners (the “Board”), adopted Ordinance No. 2006-045 (the “Ordinance”), which
established Waterford Estates Community Development District (the “District”), pursuant to
Chapter 190, Florida Statutes. The District has the authority to impose special assessments
against the property within the Development.
11. On or about May 4, 2006, and July 14, 2006, the Board adopted Resolutions
2006-12 and 2006-18, respectively, which authorized capital improvement projects to be
constructed by the District.
12. On or about May 4, 2006, and July 14, 2006, the Board adopted Resolutions
2006-14 and 2006-21, respectively, which authorized the District to issue bonds to finance the
capital improvement projects.
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13, The District imposed _ special assessments against property within the
Development to repay the bonds that were issued to finance the capital improvements.
14. At the time of the passing of the Ordinance and Resolutions in 2006, and the
imposition of the special assessments, Lo Land Assets, LP (“Lo Land”) was the owner of all the
property within the Development.
15. Lo Land operated as a land bank for the original developer, Tousa Homes, Inc.
(“Tousa Homes”),
16. Pursuant the authority granted by the above referenced Ordinance and
Resolutions, and a Developer’s Agreement that was adopted by the Board, the original
developer, Tousa Homes, began improving the Development by installing the capital
improvements projects which included water, sewer, electric, streets, curbs and other
infrastructure in 2006.
17. In 2010, Lo Land became delinquent in paying the special assessments and in a
settlement agreement the ownership of the property within the Development was transferred to
Maxcy by Special Warranty Deed dated December 15, 2010, recorded at Book 35-34 and Pages
1213-1236 of the public records of Charlotte County on December 20, 2010.
18. The property description at the time of transfer to Maxcy in 2010 was as follows:
Lots 1 through 102; Lots 106 through 147; Lots 175 through 211; Lots 214
through 219; Lots 256 through 401; Lots 410 and 411; Lots 418 through 477 and
Tracts A, C-4, C-5, C-6, C-7, C-8, C-9, C-11, C13, C-14, C-17, C-18, F-1,F-2, F-
3, F-4, MF-1, MF-1, MF-2, MF-3, R-1 and R-2, all in WATERFORD ESTATES,
according to the plat thereof, as recorded in Plat Book 20, Page 1, in the Public
Records of Charlotte County, Florida.
LESS AND EXCEPTING:
Those portions of Tracts C-11, C-13, F-3, R-1 and R-2, as conveyed to Waterford
Estates Development District, a local unit of special purpose government in
Special Warranty Deed dated September 21, 2006 and recorded October 3, 2006
in Book 3045, Pages 1747 through 1757, in the Public Records of Charlotte
County, Florida.
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19, Since 2010, Maxcy has been the asset manager involved in such tasks as
managing the Development and selling off blocks of lots to builder D.R. Horton (“Horton”).
20. Horton has since purchased lots 37 through 74, and Maxcy retains ownership of
the balance of the property within the Development that was described above and transferred to
Maxcy in 2010 (the “Property”).
21. A Location Map showing where the Property is situated within the County and in
relation to major roadways is attached hereto for reference as Exhibit A.
22. A District Boundary Map showing the Development and the planned
improvements, streets and lot numbers is attached hereto for reference as Exhibit B.
23. The southeastern boundary of the Property abuts the Charlotte County Airport
Road Annex, whose address is 25490 Airport Road, Punta Gorda, Florida 33950 (the “County
Property”), which is owned by Charlotte County.
Discovery and Notice of the Claim
24. The Sheriff currently operates a shooting range on the County Property (the “Gun
Range”).
25. The Gun Range has been used by the Sheriff, various other law enforcement
agencies, as well as members of the public and continues to be used for target practice and other
shooting activities. Both handguns and long-guns are used at Gun Range. High powered rifles
that are used for sniper qualifications are also used at the Gun Range. Both paper targets and
steel targets are used at the Gun Range.
26. The Gun Range has an earthen berm whose intended purpose is to capture all of
the rounds that are fired at the Gun Range.
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27. Bullets and bullet fragments leave the Gun Range by two primary mechanisms,
ricochets where the bullets hit the targets or the earthen berm and are deflected, and over-flying
where bullets do not hit the berm but fly over the top of the berm.
28. Prior to November 13, 2013, Maxcy had neither actual knowledge nor
constructive knowledge that bullets from the Gun Range were entering its property.
29. Prior to November 13, 2013, Maxcy had neither actual knowledge nor
constructive knowledge that actions by the County and the Sherriff in operating the Gun Range
constituted negligence or trespass.
30. On November 13, 2013, while laying conduit for infrastructure, Comcast Cable
employees informed Horton that they found bullets in the roadway of the Development.
31. Maxcy first learned of bullets coming onto their property shortly after Comcast
Cable found the bullets.
32. On November 21, 2013, Horton informed the County in person, including
Commissioners Tricia Duffy, Bill Truex, and Ken Doherty, that stray bullets had been found in
the streets of the Development and it appeared as though they were coming from the Gun Range.
33, Shortly after the County was made aware of the claims that bullet fragments from
the Gun Range were entering the Development, the Sheriff was also made aware of these same
claims.
34. In February 2014 the County and the Sheriff undertook to investigate whether
bullets were leaving the Gun Range.
35, On February 20, 2014, the County and the Sheriff learned from a contractor for
Comcast that bullets had left the Gun Range and landed on the Plaintiffs property.
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36. Despite knowledge of the claims by Plaintiff and the eyewitness account of the
contactor for Comcast of stray bullets leaving the Gun Range, neither the County nor the Sheriff
altered their use and operations of the Gun Range to eliminate bullets that originated on the
County Property from entering the Development.
37. In February 2014, a Preliminary Study was commissioned by Maxcy to determine
the extent of the stray bullets from the Gun Range that were entering the Development.
38. The Preliminary Study examined lots 16 through 18, the area behind these lots
adjacent to the County Property and the roadway in front of these lots. A magnetic device was
used to locate bullet fragments and found the following: approximately 80 bullet fragments
behind the lots; over 40 fragments on lot 16; approximately 80 rounds on lot 17; and over 50
rounds in the roadway in front of lots 13 to 20.
39. On April 15, 2014, the claim by Maxcy was presented to the County and to the
Sherriff in writing. A true and correct copy of the First Demand by Maxcy is attached hereto as
Exhibit C.
40. The First Demand satisfies the statutory requirement of presenting the claim in
writing to the appropriate agency pursuant to § 768.28(6)(a), Florida Statutes (2014).
41. The results of the Preliminary Study were brought to the attention of the County
and the Sheriffin April 2014.
42. Specific demand was made upon the County and the Sheriff in April 2014 to
cease operations at the Gun Range and they refused to do so.
43. After learning of the results of the Preliminary Study, the County and the Sheriff
failed to cease operations of the Gun Range or otherwise modify the operation of the Gun Range
to prevent bullets from entering the Development.
ORL 299306546v1
44. After learning of the results of the Preliminary Study, the County and the Sheriff
denied that the stray bullets were coming from the Gun Range.
4S. In order to attempt to convince the County and the Sheriff that the bullets
originated from the Gun Range, Maxcy commissioned another study.
46. In August 2014, a bullet distribution and analysis report (“Distribution Report”)
was commissioned by Maxcy to determine distribution of bullets found in the Development
adjacent to the County Property.
47. Maxcy believed that proof of higher concentration of bullets on the lots closest to
the Gun Range and a decreasing amount of bullets with increasing distance would finally prove
to the County and the Sheriff that in fact the bullets were escaping from the Gun Range.
48. The Distribution Report found hundreds of bullets with the highest concentration
occurring on lots 17 to 24 which are closest to the earthen berm at the Gun Range.
49. On September 26, 2014, the claim by Maxcy, for the second time, was presented
to the County and to the Sherriff in writing. A true and correct copy of the Second Demand by
Maxcy is attached hereto as Exhibit D.
50. The Second Demand satisfies the statutory requirement of presenting the claim in
writing to the appropriate agency pursuant to § 768.28(6)(a), Florida Statutes (2014).
51. The results of the Distribution Study were brought to the attention of the County
and the Sheriff in September 2014.
52. After learning of the results of the Distribution Study, the County and the Sheriff
failed to cease operations of the Gun Range or otherwise modify the operation of the Gun Range
to prevent bullets from entering the Development.
ORL 299306546v1
53. After learning of the results of the Distribution Study, the County and the Sheriff
denied that the bullets were coming from the Gun Range.
54. On April 3, 2015, Maxcy presented its claim to the Department of Financial
Services. A true and correct of Financial Services Demand is attached hereto as Exhibit E.
55. The Financial Services Demand satisfies the statutory requirement of presenting
the claim in writing to the Department of Financial Services pursuant to § 768.28(6)(a). Florida
Statutes (2014).
56. Maxcy first learned of the bullets coming onto its property caused by the County
and the Sherriff in November 2013.
57. Maxcy presented its claim to the Department Financial Services in April 2015
which is within three years of the claim accruing as prescribed by the statute. § 768.28(6)(a),
Fla, Stat, (2014).
58. Maxcy presented its claim to the Defendants on numerous other occasions.
59. Maxcy presented its claim to the Defendants with the filing of the Amended
Complaint on April 3, 2015, which included the First Demand, the Second Demand and the
Financial Services Demand.
60. The Amended Complaint included detailed allegations of the claim by the
Plaintiff and that it was seeking money damages and injunctive relief regarding the operation of
the Gun Range.
61. Maxcy presented its claim to the Defendants with the filing of its Response to the
Defendant’s Motion to Dismiss which included the First Demand, the Second Demand and the
Financial Services Demand.
ORL 299306546v1
62. The Defendant’s Motion to Dismiss was heard by the Court on July 20, 2015, and
the Defendants argued that they had not received the required statutory notice.
63. Plaintiff made another attempt to satisfy the Defendants regarding the required
statutory notice.
64. By a letter dated and sent by overnight delivery on July 22, 2015 (the “Third
Demand”), the Plaintiff provided additional notice of its claim to the Defendants and the
Department of Financial Services. A true and correct copy of the Third Demand is attached
hereto as Exhibit F.
65. The Third Demand included the First Demand, the Second Demand, the Financial
Services Demand, the Complaint and the Amended Complaint as attachments.
66. The Third Demand also included a narrative stating, inter alia, that the Defendants
had operated a gun range and allowed bullets to dangerously leave their property and the
Plaintiff had been damaged.
67. The Third Demand stated that the claim included the Plaintiff seeking money
damages in an amount to be determined at trial for all damages available under the law which
may include costs of remediation, loss of property value, cost of investigation, and other money
damages.
68. The Third Demand stated that the claim included the Plaintiff seeking an
injunction prohibiting the Defendants from continued operation of the range.
69. The Third Demand incorporated all of the allegations of the Complaint and
Amended Complaint, and they were attached thereto.
70. The Third Demand was sent to and received by the following individuals:
a. Sheriff Bill Prumell;
b Bruce Jolly, Esq., counsel of record for the Sheriff in this matter;
9
ORL 299306546v1
Cc. Janette S. Knowlton, Esq., Charlotte County Attorney;
d Philip Fairman, Esq., and Cody B. Vaughn-Birch, counsel of
record for the County in this matter;
€. Ray Sandrock, County Administrator.
f. Christopher Constance, Bill Truex, Stephen Deutsch, and Tricia
Duffy, Board of County Commissioners; and
g Marc Stemle, Administrator, Department of Financial Services.
71. Proof of the service of the Third Demand is attached hereto as Exhibit G.
72. The Third Demand satisfies the statutory requirement of presenting the claim in
writing to the appropriate agency and to the Department of Financial Services pursuant to
§ 768.28(6)(a), Florida Statutes (2014).
Maintenance, Configuration and Operation of the Rang
2B. Prior to the filing of the Complaint in this matter, the Defendants failed to
maintain the Gun Range properly.
74, The Defendants failed to remove the accumulated lead from the earthen berm
backstop in accordance with accepted guidelines in the industry for the maintenance of such
berms.
75. The failure to remove the accumulated lead from the berm created ricochet-
producing materials that caused ricochets to leave the Gun Range and enter the adjacent
property.
76. Prior to filing of the Complaint in this matter, the Defendants operated the Gun
Range in a negligent manner without care or concern for damage to property or personal injury
which may occur due to their operations.
77. The Defendants did not have sufficient administrative and operational controls in
place on the Gun Range to provide a reasonable level of care to prevent bullets from leaving the
Gun Range.
10
ORL 299306546v1
78. The Defendants allowed personnel other than employees of the Charlotte County
Sheriff's Office to use the Gun Range. They allowed family and frie
Preview
Filing # 49388625 E-Filed 11/29/2016 02:30:39 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT, IN AND FOR CHARLOTTE COUNTY, FLORIDA CASE NO. 15-000259CA MAXCY DEVELOPMENT GROUP HOLDINGS — WATERFORD ESTATES, INC., Plaintiff, Vv. CHARLOTTE COUNTY and SHERIFF BILL PRUMMELL, Defendants. / PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS The Plaintiff, Maxcy Development Group Holdings — Waterford Estates, Inc. (“Maxcy”), by and through its undersigned counsel, pursuant to Rule 1.140(c), Florida Rules of Civil Procedure, hereby files its response to the County’s motion for judgment on the pleadings filed by the Defendant, Charlotte County (the “County”) and in support thereof states as follows: 1 The County has filed a motion captioned Charlotte County’s Motion for Judgment on the Pleadings or, in the alternative, Motion for Partial Summary Judgment. Because the standards for a judgment on the pleadings and a motion for summary judgment are so different, addressing the primary relief sought and the alternate relief can be confusing. Therefore, this reply will be directed to the judgment on the pleadings. Accordingly there are no references to affidavits, answer to interrogatories, admissions, depositions or other materials. The consideration of whether such a judgment is appropriate rises and falls only on the allegations of the pleadings, all of which must be taken as true in favor of the non-movant. ORL 299435636v2 2 There are three issues before the Court on the motion for judgment on the pleadings: (1) the timeliness of the notice and can statutory notices pursuant to §768.28(6)(a), Florida Statutes be served after institution of the action as long as they are still within the 3 year timeframe; (2) the content of the notice and did the notices contain sufficient description of the claim; and (3) did providing the Plaintiffs federal tax id and allegations of previous judgments in the Complaint satisfy the requirements of §768(6)(c and d). 3 The pleadings have closed and it is now an appropriate time for the Court to entertain judgments on the pleadings. The Requirement to Provide Tax ID and Judgments 4 Facts as Plead:' The Plaintiff provided its federal tax id and alleged that there were no prior adjudicated claims owed to either of the Defendants in the Complaint at paragraphs 2 and 3, and in each of the subsequent amendments to the pleadings, including the operative pleading, the Third Amended Complaint, to wit: a. “Maxcy’s federal identification number is [number stated]”. b. “Maxcy has no prior adjudicated claims owed to either of the Defendants.” 5 Section 768.28(6)(c) provides that “[t]he claimant shall provide to the agency the claimant’s ... federal identification number.” The claimant shall also state amounts of previous adjudicated judgments or “[i]f there exists no prior adjudicated unpaid claim in excess of $200, the claimant shall so state.” 6. The purpose of the statute is to ensure that the state is aware of all previous claims owed to the state by the plaintiff so that the state may properly allege and assert a set-off for the amount of the previous claims. ' The operative pleading in this matter is the Third Amended Complaint which was deemed filed as of May 13, 2016, and is attached hereto for reference as Exhibit A. 2 ORL 299435636v2 7 The statute provides the timing and purpose for the disclosures. “For purposes of this section, complete, accurate, and timely compliance with the requirements of paragraph (c) shall occur prior to settlement payment, close of discovery or commencement of trial, whichever is sooner; provided the ability to plead setoff is not precluded by the delay.” §768.28(6)(d), Fla. Stat. (2016). (emphasis added.) The statute creates deadlines to ensure that the state is not prejudiced in asserting a setoff as an affirmative defense and explicitly state those deadlines. 8 The statute also provides the relief available to the state if the plaintiff fails to timely provide the disclosure: “Unless the appropriate agency had actual notice of the information required to be disclosed by paragraph (c) in time to assert a setoff, an unexcused failure to disclose shall, upon hearing and order of the court, cause the claimant to be liable for the double the original undisclosed judgment ...” §768.28(6)(d), Fla. Stat. (2016). The relief afforded by the statute is a penalty in the form of doubling the setoff, it is not dismissal. 9 The requirement of the statute is to disclose the potential amount of set-off so that it can be pled by the state, and the failure to make such a disclosure can result in the state being able to double the amount of the set-off. The failure to disclose does not affect the Plaintiff's ability to bring suit or recover a judgment. The only relief available is a set-off penalty. 10. The facts as pled prove that Maxcy has previously complied with the requirement of the statute by providing the tax id number and the existence of any claims prior to the sooner of settlement payment (which has not occurred), close of discovery (which has not occurred) or commencement of trial (which has also not occurred). Based upon the pleadings, the Court should rule as a matter of law that Maxcy complied with the requirements of §768.28(6)(c), Florida Statutes. ORL 299435636v2 WHEREFORE Maxcy Development Group Holdings — Waterford Estates, Inc. respectfully requests that this Court deny so much of the Defendant’s motion for judgment on the pleadings that is based upon failure to provide federal tax id number and notice of adjudicated claims and rule that Maxcy has timely complied with this condition precedent. The Claim That There is a Requirement to Provide Notice Pre-Suit 11. Facts as Plead: a, The Plaintiff had neither actual nor constructive knowledge that bullets from the gun range were entering its property nor actual or constructive knowledge that actions by the Defendants constituted negligence or trespass before November 13, 2013. See, Third Amended Complaint, paras. 28 and 29. b. The Plaintiff provided written notice to the County and the Sheriff by letters dated April 15, 2014 and September 26, 2014. See, Third Amended Complaint, paras. 39 and 49 and Exhibits C and D to the Third Amended Complaint, respectively. c. The Complaint was filed on February 4, 2015. d. The Plaintiff provided notice to the Department of Financial Services on April 3, 2015. See, Third Amended Complaint, para. 54 and Exhibit E to the Third Amended Complaint. €. The Amended Complaint was filed on April 14, 2015. f. The Plaintiff provided additional notice to the Department of Financial Services and the Defendants on July 22, 2015. See, Third Amended Complaint, para. 64 and Exhibit F to the Third Amended Complaint. ORL 299435636v2 g The Third Amended Complaint was deemed filed on May 13, 2016. 12. Section 768.28(6)(a), Florida Statutes requires a claimant to present its claim to the state or one of agencies and to the Department of Insurance within 3 years of the claim accruing. The statute also requires that the plaintiff plead compliance with statutory conditions precedent. However, a claimant can provide the notice after a suit is instituted as long as the statutory notice is provided within the 3 year time limit and the suit is brought within the applicable statute of limitations. 13. The County represents to the Court that “no Court in this State has allowed notice served in the midst of litigation to suffice as presuit notice.” See, County Motion, Argument, para. 5. That is not the state of the law. 14, Other than their bald allegation, the County has not cited any case supporting the proposition that failing to serve the notice prior to filing the initial complaint is dispositive. In fact, the last court to adopt the position the County proposes was overturned on appeal. In Askew v. County of Volusia, 450 So, 2d 233 (Fla. 5th DCA 1984), the trial court was reversed when it held that statutory notices filed after the original complaint were ineffective. Jd. at 235. 15. In Askew the plaintiff filed his first complaint shortly after being injured. Approximately 2 years later, the plaintiff added the County to the suit by an amended complaint. After the County was added the Plaintiff served the statutory notice to the County and the Department. The Plaintiff next served a second amended complaint alleging service of the statutory notices and the County moved to dismiss because the notices were served after the suit was instituted. The trial courted noted the timing of the notices as being after the first amended complaint and before the second amended complaint but still granted the motion to dismiss. The ORL 299435636v2 trial court ruled: “Plaintiffs only attempts at giving notice were subsequent to the filing of his first amended complaint ... and were ineffective under the statute.” Id. at 234. 16. In reversing the trial the court, the 5th DCA noted that “[t]he trial court apparently felt that since the notice was given after the filing of the original compliant, it was forever ineffective.” Jd. at 235. The appeals court held that the trial court should have either allowed an amendment or allowed a newly-filed complaint to stand. /d. 17. The Askew case makes the key point that failure to serve the statutory notices prior to filing the initial complaint does not forever bar the lawsuit. Contrary to the law, that is exactly what the County is claiming. They are not claiming they didn’t receive the initial notices; they are not claiming that they didn’t have opportunity and did in fact investigate. The claim by the County is a classic “gotcha”. However, in this case the law does not support the sanction of complete dismissal of the Plaintiff's suit. The case law clearly supports the ability of the Plaintiff to provide the statutory notices after the initial filing and prior to the operative pleading alleging compliance with the statutory condition precedent. 18. It has been pled, and is also undisputed, that the Plaintiff served written notices upon the Defendants on April 15, 2014 and September 26, 2014, on the Department on April 3, 2015, and again on the Department and the Defendants on July 22, 2015; and that all notices were served within the 3 year time limit. 19, The statute requires the notice be served within 3 years of the claim accruing and courts have determined that such notice can be served after the lawsuit is filed as long as it is still within the 3 year time period. In this case, the 3 year period began running on November 13, 2013, and all of notices were served on or prior to July 22, 2015, approximately 20 months later. ORL 299435636v2 WHEREFORE Maxcy Development Group Holdings — Waterford Estates, Inc. respectfully requests that this Court deny so much of the Defendant’s motion that is based upon failure to timely serve the notice required by §768.28(6)(b), Florida Statutes. The Content of the Notice 20. Facts as Plead: a. The Plaintiff had neither actual nor constructive knowledge that bullets from the gun range were entering its property nor actual or constructive knowledge that actions by the Defendants constituted negligence or trespass before November 13, 2013. See, Third Amended Complaint, paras. 28 and 29. b. The Plaintiff provided notice of its claim to the County and the Sheriff by letters dated April 15, 2014 and September 26, 2014. See, Third Amended Complaint, paras. 39 and 49 and Exhibits C and D to the Third Amended Complaint, respectively. Cc. The Plaintiff provided notice of its claim to the Department of Financial Services on April 3, 2015. See, Third Amended Complaint, para. 54 and Exhibit E to the Third Amended Complaint. d The Plaintiff also provided notice of its claim to the County, Sheriff and Department by letter dated July 22, 2015. See, Third Amended Complaint, para. 64 and Exhibit F to the Third Amended Complaint. €. The Third Amended Complaint is the operative pleading and was deemed filed as of May 13, 2016. f, Each of these notices were served and received within three years of the claim accruing on November 13, 2013. ORL 299435636v2 g Each of these notice were served and received prior to the filing of the Third Amended Complaint on May 14, 2016. 21. The County’s complaint about the sufficiency of the Plaintiff's April 15, 2014, September 26, 2014 and July 22, 2015 notice letters are that they do not state that the Plaintiff is suing for negligent construction, negligent maintenance and negligent operation of the Gun Range, do not make a demand for compensation and were never served on the Department. The County also appears to complain that different notices were served on the Department than the County and the Sheriff. 22. Section 768.28(6)(a), Florida Statutes, states that “[a]n action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing the appropriate agency.” The statute also requires that notice be provided to the Department of Financial Services (the “Department”, Id. The statute is otherwise silent as to the necessary content of the notice. 23. The case cited by the County in support of its motion, Smart v. Monge 667 So. 2d 957 (Fla. 2d DCA 1996), provides an example of a notice that was not sufficient to alert the defendants that they needed to investigate the allegations. In Smart, the Plaintiff sued the Sheriff and the County Commissioners. It appears that three years had passed since the claim had accrued and the Plaintiff's attorney was scrambling to find a previously sent letter that could post hoc satisfy the notice requirements. All the Plaintiff could find was a previous request for documents which made no mention of any claim. The Court found that letter insufficient. The court noted that it had previously held that “any manner of written notice that satisfactorily describes or identifies the occurrence underlying the claim should suffice.” /d. at 958. However, the court held that “[a]lthough the statute lacks specificity as to what is required to present a ORL 299435636v2 notice of claim, we conclude, at a minimum, the written notification must contain language notifying the agency of a claim; that is a demand for compensation.” Jd. at 959. The Smart letter did not meet this requirement. 24. The Smart case provides the full text of the letter sent by the plaintiff to the Sheriff's attorney. As the Smart court notes, it is merely a request for documents and provides no notice that the claimant is seeking any type of relief, other than production of documents. June 8, 1993 Tom Scanlan, Esquire Legal Advisor Sarasota County Sheriff's Office P.O. Box 4115 Sarasota, FL 34230 Re: Kenneth Smart Date of Death: 4/5/91 Dear Mr. Scanlan: It was a pleasure speaking with you in the above referenced matter. Please be advised that I have been retained by Mr. Smart's mother, Electa Smart. On her behalf I would like to make a formal request for all available documents concerning Mr. Smart including any investigation into his death. Should you require anything further from me in order to provide this information please advise. Thank you for your assistance and cooperation. Smart at 958-9, 25. The Smart letter which the Plaintiff tried to shoehorn into being an adequate statutory notice, was nothing more than a request for documents and provides no notice that Mrs. Smart was stating any type of claim against the Sherriff. 26. The County appears to imply that the Smart case requires that a claim for compensation must liquidate the amount of damages instead of merely claiming the existence of damages. Plaintiff acknowledges that the claim does not liquidate the amount of the damages but states that is not a requirement of the statute nor of the Smart case. Further the Smart case does not address the situation where the claim is for injunctive relief, as is the instant case where the Plaintiff demands that the operation of the gun range cease. ORL 299435636v2 27. The Smart case tells us what is not a notice letter — a simple request for documents will not suffice — but we have to turn to other cases to learn what is required in a proper notice letter. 28. In Whitney v. Marion County Hospital District 416 So. 2d 500 (Fla. 5" DCA 1982) the appeals court reversed the finding below that was based upon a failure to provide a notice with the proper content. The Court held: “Since section 768.28(6) does not specify the form or manner of submitting the claim, except that it be in writing, it follows that any manner of submitting a written notice of the claim to the agency involved that sufficiently describes or identifies the occurrence so that the agency may investigate it, satisfies the statute.” Jd at 502. (emphasis added.) The court identified that the key attribute of the notice is the identification of the occurrence; the thing that happened; the facts describing or identifying what happened. There is no mention nor requirement to state a specific legal theory which may give rise to recovery based upon the occurrence. There is no requirement to state a specific cause of action. And there is no requirement to state what the damages may be. Whitney identifies that the purpose of notice is to provide information to the agency so that the agency has the ability to investigate it. 29. The claim presented by Plaintiff to the County and Sheriff most certainly seeks relief and redress from the harm caused by their actions. It describes in detail the occurrence. It provided sufficient information so that the Defendants can investigate the claim. The claim letters specifically request that the Sheriff cease and desist from operating the gun range and move the gun range to another location. Although the amount of damages were then unknown, it is was no secret that the Plaintiff stated it has been damaged by the Defendants, sought to be made whole, and demanded that the Defendants cease operation of the gun range. 10 ORL 299435636v2 Examination of the Notice Letters 30. The first notice, the April 15, 2014, letter attached as Exhibit C to the Third Amended Complaint, is captioned “Specific Demands of Maxcy” and identifies the nature of the claim and demands that the Defendants take certain actions to address the claim. The fact that the stray bullets have come from the County’s operation of the gun range would seem indisputable. The fact that bullets are “straying” into adjacent property would seem to be a clear case of trespass and nuisance. The County and the Sheriff are on notice of the fact their gun range has been operating in an unsafe manner and they have failed to recognize the problem or correct it. [T]he Sheriff should immediately take these reasonable and prudent actions; cease all operation on the Range; and engage an ordinance expert to fully investigate history and magnitude of the stray bullets that have landed on [Plaintiffs] Property. 31. The second Notice, September 26, 2014, letter attached as Exhibit D to the Third Amended Complaint, also provided notice to the Defendants of Maxcy’s claim and the relief sought. ... subcontractor’s ... said they witnessed bullets hitting the property. ... over 150 bullets and bullet fragments [have been found] [The further study] found hundreds of stray bullets and bullet fragments... The tests found high caliber bullets and rounds from automatic weapons commonly used for law enforcement or SWAT team use. [Personnel have attested to bullets hitting the tree line separating the community from the gun range while they were on site gathering data. We hereby request that you re-consider our attorney’s April 15, 2014 Demand Letter... 32. The notice to the Department, April 3, 2015, letter attached as Exhibit E to the Third Amended Complaint, provides adequate notice to the Department for them to investigate.” Please consider this notice to the Department of Financial Services pursuant to section 768.28(6), Florida Statutes. Maxcy Development Group Holdings — ? The witness for the Department, Kelly Hagenbeck, stated that the extent of their investigation is to determine whether the Department is the insurer for the agency. In this case they were not the insurer and the Department simply file the notice away without further action. 11 ORL 299435636v2 Waterford Estates, Inc. (“Maxcy”) has claims against both Charlotte County and the Sheriff of Charlotte County, Bill Prummell related to the operation of gun range which is adjacent to property owned by Maxcy. The claim sounds in tort for nuisance. It is a recent and ongoing nuisance as the gun range is still be[ing] operated and bullet fragments are still entering Maxcy’s property. Macxy is seeking both monetary damages as well as an injunction preventing future damage to its property and the public property (the streets) in the development. 33, In April, 2015, the Department was put on notice of the state actors (the County and Sheriff), their actions (operating a gun range), the location of the harm (adjacent property), the time when the actions occurred (recent and ongoing), the nature of the harm being suffered (bullet fragments entering property), and the relief being sought (monetary damages and injunctive relief). 34. After the Defendants repeatedly raised the issue of the adequacy of the notice, the Plaintiff put the Defendants and the Department on notice again with the July 22, 2015 letter, this time with a subject line specifically referencing the statute: “Statutory Notice of Claim - §768.28(6), Florida Statutes.” The July 22, 2015 letter is partially quoted below: The Sheriff and County have permitted bullets from their range to dangerously enter the private and public property of the immediately adjacent property owner. In doing so, they damaged the adjacent property and put members of the public at risk for personal injury. Maxcy first learned of the encroachment to their property in November 2013. The Sheriff, however, has been aware of bullets leaving the range for some time. They continued to operate the range and risk damage to property and injury to persons in spite of notice going back as far as 2002 involving incidents where a woman was injured by a stray bullet and a window of car was damaged by another stray bullet. The prior sheriff actually investigated these prior matters and made statements to the press which appeared to admit liability. Maxcy has sued the Sheriff and the County in tort. Maxcy is seeking money damages, the exact amount to be determined at trial, for all damages available under the law which may include costs of remediation, loss of property value, costs of investigation, and other money damages. Maxcy is also seeking injunctive relief prohibiting the Sheriff and the County from continued operation of the range. Enclosed please find the original Complaint filed February 4, 2015, the Amended Complaint filed April 14, 2015 and all the attachments thereto. Please read the pleadings and all the attachments carefully as Maxcy incorporates all of their allegations, herein. 12 ORL 299435636v2 You can see from the Complaints and the attachments that Maxcy has provided notice in the past, is claiming money damages, and is seeking injunctive relief. 35. The purpose of the notice required by § 768.28(6), Florida Statutes, is to provide advance notice to state agencies that a claim may be made against them. It does not shorten the statute of limitations, but provides an advance warning that a claim may be made. It prevents the agency from being surprised if a suit is brought on the eve of the statute of limitations running. It allows the agency to begin investigating the facts surrounding the potential claim and could permit pre-suit evaluation and potentially settlement of the claim. The requirements for the specific contents of the notice are not identified within the statute, only that notice must be provided. The statute merely requires the “claimant present[] the claim in writing to the appropriate agency. §768.28(6)(a), Fla. Stat. 36. The multiple and repeated notices provided to the Defendants and the Department meet the requirements of the statute, and the cases interpreting the statutes, to provide adequate notice that claim is being stated against them. The content of the letters was more than adequate to provide the statutory notice. WHEREFORE Maxcy Development Group Holdings — Waterford Estates, Inc. requests that this Court deny the Defendant, Charlotte County’s motion for judgment on the pleadings. 13 ORL 299435636v2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 29 day of November, 2016, I electronically filed the foregoing with the Clerk of the Court by using the State of Florida ePortal system which will serve an electronic copy to: Philip Fairman, Esq., Cody B. Vaughan-Birch, Esq., Office of the Charlotte County Attorney, Philip. fairman@charlottecountyfl.gov, Cody, Vaughan- Birch@charlottecountyfl.gov Laurie.Crouse@charlottecountyfl.gov and Bruce Jolly, Esq., Purdy, Jolly, Giuffreda & Barranco, P.A., bruce@purdylaw.com and susie@purdylaw.com. s/Michael G. Murphy Michael G. Murphy, Esquire Florida Bar No: 139890 GREENBERG TRAURIG, P.A. 450 South Orange Avenue, Ste. 650 Orlando, FL 32802-4923 Telephone: (407) 999-2509 Facsimile: (407) 420-5909 Email: murphyme@gtlaw.con 14 ORL 299435636v2 IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT, IN AND FOR CHARLOTTE COUNTY, FLORIDA CASE NO. 15-000259CA MAXCY DEVELOPMENT GROUP HOLDINGS — WATERFORD ESTATES, INC., Plaintiff, Vv. CHARLOTTE COUNTY and SHERIFF BILL PRUMMELL, Defendants. / THIRD AMENDED COMPLAINT‘ The Plaintiff, Maxcy Development Group Holdings — Waterford Estates, Inc. (“Maxcy”), files its Third Amended Complaint against Defendants, Charlotte County (the “County”) and Sheriff Bill Prummell (the “Sheriff’) and in support of its causes of action would state as follows: JURISDICTIONAL ALLEGATIONS 1 Plaintiff, Maxcy, is a Florida corporation who at all times material hereto was authorized to do business in the state of Florida. 2 Maxcy’s federal identification number is =. _ Maxcy has no prior adjudicated claims owed to either of the Defendants. Defendant, the County, is a state agency or subdivision of state government. Defendant, the Sheriff, is a constitutional officer of the state. * Dated May 13, 2016. ORL 299306546v1 Attachment 1 EXHIBIT A 6. This complaint states causes of action seeking damages that exceed $15,000 exclusive of attorney’s fees, costs and interest related to damage to property lying in Charlotte County. It also seeks injunctive relief related to abating a continuing trespass to property lying in Charlotte County. 7 This court has jurisdiction to hear this matter and venue properly lies in Charlotte County. 8 All conditions precedent have occurred or otherwise been waived. COMMON ALLEGATIONS Background Facts 9 The property at issue in this complaint is within what is commonly known as Waterford Estates (the “Development”), a subdivision plat which was approved by the County. 10. On or about April 18, 2006, the Charlotte County Board of County Commissioners (the “Board”), adopted Ordinance No. 2006-045 (the “Ordinance”), which established Waterford Estates Community Development District (the “District”), pursuant to Chapter 190, Florida Statutes. The District has the authority to impose special assessments against the property within the Development. 11. On or about May 4, 2006, and July 14, 2006, the Board adopted Resolutions 2006-12 and 2006-18, respectively, which authorized capital improvement projects to be constructed by the District. 12. On or about May 4, 2006, and July 14, 2006, the Board adopted Resolutions 2006-14 and 2006-21, respectively, which authorized the District to issue bonds to finance the capital improvement projects. ORL 299306546v1 13, The District imposed _ special assessments against property within the Development to repay the bonds that were issued to finance the capital improvements. 14. At the time of the passing of the Ordinance and Resolutions in 2006, and the imposition of the special assessments, Lo Land Assets, LP (“Lo Land”) was the owner of all the property within the Development. 15. Lo Land operated as a land bank for the original developer, Tousa Homes, Inc. (“Tousa Homes”), 16. Pursuant the authority granted by the above referenced Ordinance and Resolutions, and a Developer’s Agreement that was adopted by the Board, the original developer, Tousa Homes, began improving the Development by installing the capital improvements projects which included water, sewer, electric, streets, curbs and other infrastructure in 2006. 17. In 2010, Lo Land became delinquent in paying the special assessments and in a settlement agreement the ownership of the property within the Development was transferred to Maxcy by Special Warranty Deed dated December 15, 2010, recorded at Book 35-34 and Pages 1213-1236 of the public records of Charlotte County on December 20, 2010. 18. The property description at the time of transfer to Maxcy in 2010 was as follows: Lots 1 through 102; Lots 106 through 147; Lots 175 through 211; Lots 214 through 219; Lots 256 through 401; Lots 410 and 411; Lots 418 through 477 and Tracts A, C-4, C-5, C-6, C-7, C-8, C-9, C-11, C13, C-14, C-17, C-18, F-1,F-2, F- 3, F-4, MF-1, MF-1, MF-2, MF-3, R-1 and R-2, all in WATERFORD ESTATES, according to the plat thereof, as recorded in Plat Book 20, Page 1, in the Public Records of Charlotte County, Florida. LESS AND EXCEPTING: Those portions of Tracts C-11, C-13, F-3, R-1 and R-2, as conveyed to Waterford Estates Development District, a local unit of special purpose government in Special Warranty Deed dated September 21, 2006 and recorded October 3, 2006 in Book 3045, Pages 1747 through 1757, in the Public Records of Charlotte County, Florida. ORL 299306546v1 19, Since 2010, Maxcy has been the asset manager involved in such tasks as managing the Development and selling off blocks of lots to builder D.R. Horton (“Horton”). 20. Horton has since purchased lots 37 through 74, and Maxcy retains ownership of the balance of the property within the Development that was described above and transferred to Maxcy in 2010 (the “Property”). 21. A Location Map showing where the Property is situated within the County and in relation to major roadways is attached hereto for reference as Exhibit A. 22. A District Boundary Map showing the Development and the planned improvements, streets and lot numbers is attached hereto for reference as Exhibit B. 23. The southeastern boundary of the Property abuts the Charlotte County Airport Road Annex, whose address is 25490 Airport Road, Punta Gorda, Florida 33950 (the “County Property”), which is owned by Charlotte County. Discovery and Notice of the Claim 24. The Sheriff currently operates a shooting range on the County Property (the “Gun Range”). 25. The Gun Range has been used by the Sheriff, various other law enforcement agencies, as well as members of the public and continues to be used for target practice and other shooting activities. Both handguns and long-guns are used at Gun Range. High powered rifles that are used for sniper qualifications are also used at the Gun Range. Both paper targets and steel targets are used at the Gun Range. 26. The Gun Range has an earthen berm whose intended purpose is to capture all of the rounds that are fired at the Gun Range. ORL 299306546v1 27. Bullets and bullet fragments leave the Gun Range by two primary mechanisms, ricochets where the bullets hit the targets or the earthen berm and are deflected, and over-flying where bullets do not hit the berm but fly over the top of the berm. 28. Prior to November 13, 2013, Maxcy had neither actual knowledge nor constructive knowledge that bullets from the Gun Range were entering its property. 29. Prior to November 13, 2013, Maxcy had neither actual knowledge nor constructive knowledge that actions by the County and the Sherriff in operating the Gun Range constituted negligence or trespass. 30. On November 13, 2013, while laying conduit for infrastructure, Comcast Cable employees informed Horton that they found bullets in the roadway of the Development. 31. Maxcy first learned of bullets coming onto their property shortly after Comcast Cable found the bullets. 32. On November 21, 2013, Horton informed the County in person, including Commissioners Tricia Duffy, Bill Truex, and Ken Doherty, that stray bullets had been found in the streets of the Development and it appeared as though they were coming from the Gun Range. 33, Shortly after the County was made aware of the claims that bullet fragments from the Gun Range were entering the Development, the Sheriff was also made aware of these same claims. 34. In February 2014 the County and the Sheriff undertook to investigate whether bullets were leaving the Gun Range. 35, On February 20, 2014, the County and the Sheriff learned from a contractor for Comcast that bullets had left the Gun Range and landed on the Plaintiffs property. ORL 299306546v1 36. Despite knowledge of the claims by Plaintiff and the eyewitness account of the contactor for Comcast of stray bullets leaving the Gun Range, neither the County nor the Sheriff altered their use and operations of the Gun Range to eliminate bullets that originated on the County Property from entering the Development. 37. In February 2014, a Preliminary Study was commissioned by Maxcy to determine the extent of the stray bullets from the Gun Range that were entering the Development. 38. The Preliminary Study examined lots 16 through 18, the area behind these lots adjacent to the County Property and the roadway in front of these lots. A magnetic device was used to locate bullet fragments and found the following: approximately 80 bullet fragments behind the lots; over 40 fragments on lot 16; approximately 80 rounds on lot 17; and over 50 rounds in the roadway in front of lots 13 to 20. 39. On April 15, 2014, the claim by Maxcy was presented to the County and to the Sherriff in writing. A true and correct copy of the First Demand by Maxcy is attached hereto as Exhibit C. 40. The First Demand satisfies the statutory requirement of presenting the claim in writing to the appropriate agency pursuant to § 768.28(6)(a), Florida Statutes (2014). 41. The results of the Preliminary Study were brought to the attention of the County and the Sheriffin April 2014. 42. Specific demand was made upon the County and the Sheriff in April 2014 to cease operations at the Gun Range and they refused to do so. 43. After learning of the results of the Preliminary Study, the County and the Sheriff failed to cease operations of the Gun Range or otherwise modify the operation of the Gun Range to prevent bullets from entering the Development. ORL 299306546v1 44. After learning of the results of the Preliminary Study, the County and the Sheriff denied that the stray bullets were coming from the Gun Range. 4S. In order to attempt to convince the County and the Sheriff that the bullets originated from the Gun Range, Maxcy commissioned another study. 46. In August 2014, a bullet distribution and analysis report (“Distribution Report”) was commissioned by Maxcy to determine distribution of bullets found in the Development adjacent to the County Property. 47. Maxcy believed that proof of higher concentration of bullets on the lots closest to the Gun Range and a decreasing amount of bullets with increasing distance would finally prove to the County and the Sheriff that in fact the bullets were escaping from the Gun Range. 48. The Distribution Report found hundreds of bullets with the highest concentration occurring on lots 17 to 24 which are closest to the earthen berm at the Gun Range. 49. On September 26, 2014, the claim by Maxcy, for the second time, was presented to the County and to the Sherriff in writing. A true and correct copy of the Second Demand by Maxcy is attached hereto as Exhibit D. 50. The Second Demand satisfies the statutory requirement of presenting the claim in writing to the appropriate agency pursuant to § 768.28(6)(a), Florida Statutes (2014). 51. The results of the Distribution Study were brought to the attention of the County and the Sheriff in September 2014. 52. After learning of the results of the Distribution Study, the County and the Sheriff failed to cease operations of the Gun Range or otherwise modify the operation of the Gun Range to prevent bullets from entering the Development. ORL 299306546v1 53. After learning of the results of the Distribution Study, the County and the Sheriff denied that the bullets were coming from the Gun Range. 54. On April 3, 2015, Maxcy presented its claim to the Department of Financial Services. A true and correct of Financial Services Demand is attached hereto as Exhibit E. 55. The Financial Services Demand satisfies the statutory requirement of presenting the claim in writing to the Department of Financial Services pursuant to § 768.28(6)(a). Florida Statutes (2014). 56. Maxcy first learned of the bullets coming onto its property caused by the County and the Sherriff in November 2013. 57. Maxcy presented its claim to the Department Financial Services in April 2015 which is within three years of the claim accruing as prescribed by the statute. § 768.28(6)(a), Fla, Stat, (2014). 58. Maxcy presented its claim to the Defendants on numerous other occasions. 59. Maxcy presented its claim to the Defendants with the filing of the Amended Complaint on April 3, 2015, which included the First Demand, the Second Demand and the Financial Services Demand. 60. The Amended Complaint included detailed allegations of the claim by the Plaintiff and that it was seeking money damages and injunctive relief regarding the operation of the Gun Range. 61. Maxcy presented its claim to the Defendants with the filing of its Response to the Defendant’s Motion to Dismiss which included the First Demand, the Second Demand and the Financial Services Demand. ORL 299306546v1 62. The Defendant’s Motion to Dismiss was heard by the Court on July 20, 2015, and the Defendants argued that they had not received the required statutory notice. 63. Plaintiff made another attempt to satisfy the Defendants regarding the required statutory notice. 64. By a letter dated and sent by overnight delivery on July 22, 2015 (the “Third Demand”), the Plaintiff provided additional notice of its claim to the Defendants and the Department of Financial Services. A true and correct copy of the Third Demand is attached hereto as Exhibit F. 65. The Third Demand included the First Demand, the Second Demand, the Financial Services Demand, the Complaint and the Amended Complaint as attachments. 66. The Third Demand also included a narrative stating, inter alia, that the Defendants had operated a gun range and allowed bullets to dangerously leave their property and the Plaintiff had been damaged. 67. The Third Demand stated that the claim included the Plaintiff seeking money damages in an amount to be determined at trial for all damages available under the law which may include costs of remediation, loss of property value, cost of investigation, and other money damages. 68. The Third Demand stated that the claim included the Plaintiff seeking an injunction prohibiting the Defendants from continued operation of the range. 69. The Third Demand incorporated all of the allegations of the Complaint and Amended Complaint, and they were attached thereto. 70. The Third Demand was sent to and received by the following individuals: a. Sheriff Bill Prumell; b Bruce Jolly, Esq., counsel of record for the Sheriff in this matter; 9 ORL 299306546v1 Cc. Janette S. Knowlton, Esq., Charlotte County Attorney; d Philip Fairman, Esq., and Cody B. Vaughn-Birch, counsel of record for the County in this matter; €. Ray Sandrock, County Administrator. f. Christopher Constance, Bill Truex, Stephen Deutsch, and Tricia Duffy, Board of County Commissioners; and g Marc Stemle, Administrator, Department of Financial Services. 71. Proof of the service of the Third Demand is attached hereto as Exhibit G. 72. The Third Demand satisfies the statutory requirement of presenting the claim in writing to the appropriate agency and to the Department of Financial Services pursuant to § 768.28(6)(a), Florida Statutes (2014). Maintenance, Configuration and Operation of the Rang 2B. Prior to the filing of the Complaint in this matter, the Defendants failed to maintain the Gun Range properly. 74, The Defendants failed to remove the accumulated lead from the earthen berm backstop in accordance with accepted guidelines in the industry for the maintenance of such berms. 75. The failure to remove the accumulated lead from the berm created ricochet- producing materials that caused ricochets to leave the Gun Range and enter the adjacent property. 76. Prior to filing of the Complaint in this matter, the Defendants operated the Gun Range in a negligent manner without care or concern for damage to property or personal injury which may occur due to their operations. 77. The Defendants did not have sufficient administrative and operational controls in place on the Gun Range to provide a reasonable level of care to prevent bullets from leaving the Gun Range. 10 ORL 299306546v1 78. The Defendants allowed personnel other than employees of the Charlotte County Sheriff's Office to use the Gun Range. They allowed family and frie